Punjab-Haryana High Court
Lal Chand vs Devender on 21 May, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.54 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.54 of 2014 (O&M)
Date of decision:21.05.2014
Lal Chand ....Appellant
Versus
Devender ....Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest? Present:- Mr. Hari Om Sharma, Advocate for the appellant.
RAKESH KUMAR GARG, J This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby his suit for issuance of mandatory injunction directing the defendant-respondent to close down the window fitted by him in back side wall of house was dismissed by both the Courts below.
As per the averments made in the suit, appellant is owner in possession of house situated in the area of Abadi-deh of Village Tihara Kalan, Tehsil and District Sonepat as shown in the site plan. According to the appellant, back side of the wall of the house of defendant-respondent abuts the land of the plaintiff-appellant which is used for coming and going to his house and the same has been shown as a private gali of the plaintiff-appellant in the site plan. The Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.54 of 2014 (O&M) 2 defendant-respondent taking the undue advantage of the absence of the plaintiff-appellant has opened a window towards the gali of the plaintiff in the back side of his house which has been shown in the site plan marked as LMNK unauthorizedly and illegally whereas he has no right to open the same towards the private gali of the plaintiff- appellant. Since the defendant-respondent refused to close the said window, the necessity arose to file the instant suit.
Upon notice, defendant-respondent appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the ancestors of the defendant-respondent were allotted plot Nos.102 and 102/A as shown in the Khatauni and the site plan of civil suit for partition of the abadi deh in case titled as 'Partanga vs. Rati Ram etc.' bearing No.82 of 1948 decided on 12.10.1952 and thereafter, the plot No.102/A fell to the share of the defendant-respondent in family settlement and after leaving 11' abutting to the southern gali, defendant-respondent constructed his house and fixed the window in dispute, which is existing at the spot since the time of construction of his house. It was further stated that plot No.103/D is allotted to the plaintiff-appellant in the partition proceedings and in between the plot No.103/D and 102/A, there is gali No.103/1 which falls and abuts to the 11' wide site left by the defendant-respondent out of his plot No.102/A. Thus, the plaintiff- appellant has no concern with the window as the defendant- respondent has opened the window on 11' wide side left by him out of Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.54 of 2014 (O&M) 3 his plot No.102/A and all other averments were denied and dismissal of the suit was prayed for.
After considering the evidence, the trial Court found that there exists a rasta in plot No.103/1 which is also depicted in the partition proceedings. Such fact is further corroborated by DW3- Inder Singh who admitted in his cross examination that there exists gali towards the back side of defendant's house and thus, it was quite established that there exists a public street in the back side of defendant house in plot No.103/1 as shown in the sketch map of partition Ex.D3 and defendant-respondent has installed window towards the back side of his house in main street and plaintiff- appellant has no concern with the said street. Resultantly, the suit was dismissed vide judgment and decree dated 15.10.2011.
Aggrieved from the judgment and decree of the trial Court, plaintiff filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 25.09.2013. While dismissing the appeal, lower Appellate Court observed as under:-
"Since the appellant/plaintiff has pleaded that defendant-respondent has opened a window in dispute towards the private gali of appellant/plaintiff, however defendant-respondent has got no right to open the same and accordingly it was incumbent upon the plaintiff to lead evidence in that respect. In Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.54 of 2014 (O&M) 4 support of his averments, plaintiff himself has appeared as PW-1 and further examined Bhoop Singh as PW-2, Ramesh son of Daya Chand as PW-3 and Kanwar Singh Naksha Nawis as PW-4. Plaintiff-appellant has also placed on record Ex.P-1 copy of field book showing ownership over plot N0.103/D, Ex.P-2 sketch map, Ex.PW4/A site plan of the site in question. Plaintiff has heavily relied upon Ex.PW4/A site plan to contend that Gali abutting southern side of house of defendant is private property of plaintiff. As per Ex.PW4/A, the passage abutting southern side of house of defendant/respondent is shown as private gali. A perusal of cross-examination of PW-4 Kanwar Singh Naksha Nawis, would reveal that the site plan has been prepared by him on the instructions of plaintiff Lal Chand and not in accordance with revenue record, as PW-4 has admitted in cross- examination that he had seen the revenue record, however the same has not been reflected in his site plan and the site plan has been prepared and private gali has been shown on the instructions of Lal Chand. Even otherwise, a perusal. of Ex.D- 1/Ex.D-2, which are the copy of Khatauni/field book Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.54 of 2014 (O&M) 5 of village Tihara Kalan, would reveal that there is a shamlat Rasta bearing No.103/1 and as per the sketch map of partition Ex.D-3, the said Rasta 103/1 abuts the southern side of the house of defendant/respondent in plot No.102/A, meaning thereby that the common passage/Rasta abuts the southern side of house of defendant/respondent and it is not private gali of plaintiff-appellant as claimed by plaintiff-appellant. Once it is established that common passage/Rasta abuts the southern side of house of plaintiff-appellant, then no fault could be found with opening of window in dispute towards the said common passage/Rasta. The appellant-plaintiff has failed to controvert the said evidence coming on record and has failed to adduce any documentary evidence qua his ownership and possession over the street bearing No.103/1. Accordingly, plaintiff has got no right to restrain the defendant-respondent from opening window towards common passage. Even otherwise, the argument of Ld. Counsel for appellant to the effect that defendants' witnesses have admitted private gali, is misconceived because there is no such admission in their depositions. Rather, it has Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.54 of 2014 (O&M) 6 only come out that children of Lal Chand play in the street, which by no stretch of imagination, could be termed as admission of existence of private gali, especially in view of the documentary evidence showing common passage abutting southern side of house of defendant/respondent."
Still not satisfied, plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal:-
i. Whether the impugned judgments and decrees are based on conjectures and surmises? ii. Whether the impugned judgments and decrees are based upon misreading of evidence? iii.Whether the learned Courts below have not framed just and proper issues which has gravely prejudiced the case of the appellant?
iv.Whether the learned Courts below have illegally ignored the unrebutted evidence and undisputed facts that the respondent have open the window in question in the private gali owned by the plaintiff-appellant?"
At this stage, it may be noticed that while affirming the findings of the trial Court, the lower Appellate Court recorded a finding that appellant has failed to discharge onus that the window in Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.54 of 2014 (O&M) 7 question has been opened towards his private property, rather the documents on record clearly established that common passage/Rasta abuts the southern side of house of the plaintiff- appellant and thus, appellant has no right to restrain the defendant- respondent from opening the window in question.
In fact, counsel for the appellant was unable to challenge the findings of fact concurrently recorded by the Courts below on the basis of evidence on record.
Thus, no substantial questions of law, as raised arise in this appeal.
Dismissed.
May 21, 2014 (RAKESH KUMAR GARG)
savita JUDGE
Kadian Savita
2014.05.26 09:45
I attest to the accuracy and
integrity of this document
High Court Chandigarh