Punjab-Haryana High Court
Gurbax Singh vs Bhura Singh & Another on 26 April, 2010
Author: Mahesh Grover
Bench: Mahesh Grover
R.S.A. No.3513 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A. No.3513 of 2007
Decided on : 26-04-2010
Gurbax Singh
.... Appellant
VERSUS
Bhura Singh & another
.... Respondents
CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER.
Present:- Mr. M.S. Joshi, Advocate,
for the appellant.
Mr. Vivek Rattan, Advocate,
for respondent No.1.
MAHESH GROVER, J (Oral).
Plaintiff No.1/appellant filed a suit for permanent injunction seeking to restrain the respondents from encroaching upon any part of the street measuring 10 feet depicted in the site plan from point A to B. He pleaded that the said street is a public street and not a private property of the respondents.
The defendant/respondent No.1 resisted the suit and denied the existence of the street. He pleaded that a wall has been constructed at point A to B adjoining to the property of the plaintiff No.1/appellant, whereby the street has been closed since long as the said street was carved out by original owner at the time of selling the property to the defendant/respondent No.1 and, therefore, there is no street from point A to B. The Local R.S.A. No.3513 of 2007 -2- Commissioner, who was appointed at the behest of the appellant, reported that the level of the land of the plaintiff adjoining to the disputed street is 5 feet lower than the level of the street. Consequently, it is not feasible for the appellant to use this street.
Both the courts below, therefore, determined a question of fact that this was not a public street and dismissed the suit.
In the instant regular second appeal, the appellant has contended that the findings recorded by the Courts below are perverse and that in suit initiated by the respondents on an earlier occasion, the Civil court returned a finding that there exists a public street as also the properties of the appellant and respondents. He contends that this is binding upon the respondents, therefore, the Courts below have gone wrong in not appreciating this material on record.
Learned counsel for respondent No.1 referred to the report of the Local Commissioner to justify the plea that the public street does not exist there.
I have learned counsel for the parties and have perused the impugned judgments as also the material on record.
The dispute is regarding some portion of the area, which has been depicted as points A to B in the site plan. The Local Commissioner has reported that the level of the land of the plaintiff is 5 feet lower than the existing street, making it impossible for him to use the same. The dispute is not regarding entire street and therefore, finding recorded by the Courts below in the earlier proceedings, in a suit initiated by the respondents, could not come R.S.A. No.3513 of 2007 -3- to the rescue of the appellant. The appellant has not been able to show as to whether the report of the Local Commissioner, who was appointed at his behest, is erroneous. The plaintiff produced his best evidence, which belies his case.
In any eventuality, these are the questions of fact which have been determined by the Courts below and no substantial question of law has been shown to have arisen for determination by this Court.
The appeal is, accordingly, held to be without any merit and is dismissed.
26th April, 2010. (MAHESH GROVER) Monika JUDGE