Punjab-Haryana High Court
Karam Chandthrough His Lrs. Swarn Kaur ... vs Mohinder Kaur on 1 December, 2015
Author: Surinder Gupta
Bench: Surinder Gupta
RSA-245-2015 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Regular Second Appeal No.245 of 2015 (O&M)
Date of Decision: December 01, 2015.
Karam Chand through his LRs and another
..........APPELLANT(s).
VERSUS
Mohinder Kaur
........RESPONDENT.
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. S.S. Sodhi, Advocate
for the appellant (s).
*******
SURINDER GUPTA, J.
CM-626-C-2015 Heard. There is delay of 110 days in filing the appeal.
2. Learned counsel for the appellants submits that certified copy of the judgement was delivered to the appellants on 29.03.2014 and the appeal could have been filed upto 25.06.2014, however, on 26.05.2014, Karam Chand appellant-defendant No.1 expired, resulting in delay of 110 days in filing the appeal.
3. In view of the submissions made by counsel for the appellants and the facts mentioned in the application, the same is allowed and delay of 110 days in filing the appeal is, hereby, condoned. RSA-245-2015
4. Heard.
5. This is Regular Second Appeal against the concurrent judgement SACHIN MEHTA 2015.12.05 17:16 I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH RSA-245-2015 -2- of the Courts below decreeing the suit of the plaintiff-respondent Mohinder Kaur for permanent injunction restraining the appellants-defendants from making any type of construction in the street as shown red in the site plan attached with the plaint and from creating any obstruction in the street by the defendants, in any manner.
6. The case of the plaintiff, in brief, is that she had purchased suit land vide sale deed dated 27.01.1976 and the door of her property open towards northern side in the street. The property on the northern side of the street was owned by Karam Chand, defendant No.1 and now his sons, defendants No.2 to 4. This street ends at the house of Prithvi Ram and the doors of house of defendants and plaintiff open in the said street. There also exists pucca drain on both sides of the street for discharge of dirty water of the houses abutting the street. In order to obstruct usage of the street, the defendants were bent upon to raise construction over the street, resulting in filing of this suit.
7. The defendants contested the claim of plaintiff inter-alia pleading that she has illegally kept door towards the plot sold by her to Prithi Pal. Land bearing Kharsa no.288 to 291 is being used as private street by the defendants and their family members. This is the same street, which is situated on the northern side of house of plaintiff and the drain existing on both the sides of the street, were got constructed by the defendants to drain out the water of their houses. The defendants took the plea that Gair Mumkin Rasta exists in Kharsa no.190, which is only 6 karams X 2 karams and beyond that the passage is private street owned by the defendants. This SACHIN MEHTA 2015.12.05 17:16 fact was, however, admitted that the passage in Khasra nos.291, 290, 289 I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH RSA-245-2015 -3- and 288 ends at the house of Prithi Ram. The doors of the house of Prithi Ram, Amrik Singh, Satpal and Jiwan Dass opens in that street which was alleged to be private passage. The defendants asserted their right to raise any construction over the land bearing Khasra No.288 to 290.
8. Both the Courts below relied on the observation in the earlier suit filed by Karam Chand-defendant no.1 pertaining to matter in dispute, while allowing relief of injunction to the plaintiff-respondent. Observations in the earlier suit filed by Karam Chand were incorporated in para 21 of the judgement of learned lower court, which reads as follows:-
"21. ....................................... Further the plaintiff has placed on file the copy of judgement dated 28.07.1986 passed by the court of Sh. S.S. Hundal, the then Ld. Civil Judge, as Ex.PX, whereby in para 10 of the judgement, the Ld. Court of Sh. S.S. Hundal has held that "It stands proved beyond doubt that there are two paths leading to the house of Mohinder Kaur. Thus the plots of the plaintiff does not about khasra No.191 and 292 but a path separate them from khasra No.191 and 192. So plaintiff is not entitled to injunction." The Ld. Court has also observed that the fact that there exists a path in between khasra No.287, 288, 289, 290 and 201 on one hand and 191 and 192 on the other hand. Thereafter the Ld. Appellate Court in para No.10 has also observed that "The matter do not rest over here. Ex.D-1, which has been prepared by Patwari Halqa Parkash Chand DW-1 shows that in between khasra Nos. 296, 297, 288, 289, 290, 291 and khasra No.192 and 191 there exists a path."
Both the Trial Court as well as Ld. Appellate Court has clearly held that there exists a Path in between the khasra SACHIN MEHTA 2015.12.05 17:16 numbers as stated above. These judgments have become I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH RSA-245-2015 -4- final as no second appeal has been filed by the defendant against these judgments."
9. It is apparent from the above observation that matter regarding the existence of street in dispute has already been set at rest and a specific finding has been recorded that there are two passages for the house of Mohinder Kaur-plaintiff. Secondly, a path separates house of plaintiff from Khasra nos.191 and 192. Thirdly, there is a street between Khasra nos.296, 297, 288, 289, 290, 291 and Khasra nos.192 and 191.
10. Learned counsel for the appellants has argued that the street beyond Khasra no.190 is a private street, but could not dispute that this matter has already been settled in the earlier suit filed by Karam Chand, but has argued that in the year 2004 Mohinder Kaur sold her share in the land bearing Khasra nos.287, 288, 289 to defendants and after the sale, the defendants have become owner of the land purchased along with passage. Above argument was also advanced before the first Appellate Court and was rightly declined with the observation that the street was never sold by Mohinder Kaur and even otherwise, nobody can sell the public street. The first Appellate Court has also taken note of the admitted facts between the parties in para 12 of the judgement, which reads as follows:-
"12. It is admitted fact between the parties that the plaintiff is owner of her house constructed in khasra no.192. It is also admitted fact between the parties that private street bearing khasra nos. 291, 290, 289 and 288 ends at the house of Pirthi Ram. It is also admitted fact between the parties that door of the house of Pirthi Ram, Amrik Singh, Satpal and Jiwan Dass opens in the said SACHIN MEHTA 2015.12.05 17:16 private street. It is also admitted fact between the parties I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH RSA-245-2015 -5- that defendant No.1 filed suit for permanent injunction against the plaintiff and that suit was dismissed. It is also admitted fact between the parties that appeal was also dismissed."
11. Learned counsel for the appellants has submitted that the documents like akshijra etc. (Ex.D1 to D7 ) were placed on record and the Courts should have re-appreciated the matter regarding the existence of the street at the spot, irrespective of the findings in the earlier suit filed by Karam Chand.
12. The above submissions have no merits as the findings in the earlier suit regarding the same subject matter operates as res-judicata against the defendant Karam Chand and the matter could not be reopened by the Court, once the judgement of the Court in the earlier suit has become final.
13. Nothing has been pointed out during the course of arguments that the observations and findings of the Courts below are based on misreading of evidence or wrong appreciation of the evidence on record.
14. On perusal of the judgements of the Courts below, I find no legal or factual infirmity therein calling for any interference.
15. No substantial question of law requiring determination arises in this appeal, which has not merits.
16. Dismissed.
( SURINDER GUPTA ) December 01, 2015. JUDGE Sachin M. SACHIN MEHTA 2015.12.05 17:16 I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH