Punjab-Haryana High Court
Kiran Devi Deceased Thro Lrs Vijay Laxmi ... vs Parkash Chand & Ors on 17 October, 2016
Author: Amit Rawal
Bench: Amit Rawal
RSA No.5929 of 2015 (O&M) {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No.5929 of 2015 (O&M)
Date of decision:17.10.2016
Kiran Devi (since deceased) through LRs ... Appellant
Vs.
Parkash Chand and another ... Respondent
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. Vaibhav Sehgal, Advocate for the appellant.
AMIT RAWAL J.
The appellant-plaintiff is aggrieved of the judgment and decree dated 20.07.2015 rendered by the Lower Appellate Court, whereby, the suit for permanent injunction seeking restraint order against the defendants from interfering into peaceful possession, use and occupation and other public over common rasta marked with letters 'ABCD' as per the red colour shown in the site plan and also restraining them from installing any Chajja (cantilever) in the house towards the said rasta, has been dismissed by the Lower Appellate Court, in, essence, the judgment and decree of the trial Court has been set aside.
Mr. Vaibhav Sehgal, learned counsel appearing on behalf of the appellant-plaintiff submits that the appellant-plaintiff had purchased the property, vide sale deed dated 17.08.2006, wherein it was specifically provided that on the western side of the residential house, there existed a common rasta shown with letters 'ABCD', whereas, sale deed Ex.DW1/A is of subsequent date/year, i.e., 03.05.2007 and there is no mention of the date, 1 of 4 ::: Downloaded on - 29-10-2016 04:54:30 ::: RSA No.5929 of 2015 (O&M) {2} therefore, the same could not be looked into. The Lower Appellate Court has committed illegality and perversity in setting aside the well reasoned judgment of the trial Court as every witness of the defendants admitted that there is a door and staircase to the plaintiff's house which is in the disputed passage. The door and the passage are also reflected in the site plan of the defendants. In view of such position on record, the Lower Appellate Court ought not to have interfered with the judgment and decree of the trial Court.
The Lower Appellate Court has further erred in not appreciating the fact that Jagdish son of Gopi Chand is related to the defendants by way of common ancestors and it has been proved on record that the predecessor-in-interest of the appellant-plaintiff was always using the common passage for access and exit and particularly when the residential house was sold to the plaintiff. The defendants have raised the plea that the disputed passage is their private passage but no evidence has been led in support of the same.
DW4 - Daljit Singh, while stepping into witness box, categorically admitted that the documents Ex.DW4/A to Ex.DW4/C, show the disputed passage as gali shamlat, thus, the findings of Lower Appellate Court are not sustainable in the eyes of law.
I have heard learned counsel for the appellant-plaintiff and appraised the judgments and decrees of the Courts below and of the view that there is no force and merit in the submissions of Mr. Sehgal, as the Lower Appellate Court, being the last Court of fact and law, examined the evidence threadbare and found that the sale deed Ex.D4 clearly shows that Hari Chand and Duli Chand have sold their land to Jagdish with the 2 of 4 ::: Downloaded on - 29-10-2016 04:54:32 ::: RSA No.5929 of 2015 (O&M) {3} following dimensions:-
East : street of 4 ft.
West : close street of Gopi Chand & Ghaseramal North : vacant land of Mool Chand South : public passage.
In essence, as per the aforementioned dimensions, there was a closed street towards the western side of the plot of Jagdish. From the perusal of the sale deed, it is evident that rasta/passage in dispute is/was only for the vendors of the respondent-defendants. The perusal of site plans Ex.DW3/B and Ex.DW3/C shows that there is no rasta for the appellant/plaintiff. In my view, there is incorrect recital in the sale deed Ex.P1 executed in favour of the appellant-plaintiff that there is a common gali. The vendor of the appellant-plaintiff had no right to write in the sale deed regarding the common gali on his own, i.e., particularly, the western side of the plot. The finding arrived at by the Lower Appellate Court regarding the rasta/gali in dispute is not meant for the use of appellant/plaintiff and exclusively for the vendor of the respondent-defendants is perfectly correct appreciation of the oral and documentary evidence. The respondent-defendants were at liberty to raise wall in their own land, i.e., street opposite or their vendors. The relief sought, in my view, tantamounts to easementary rights but the site plan Ex.P1 produced shows that there is a rasta in the eastern and southern side of house of the appellant/plaintiff. Once there is already access towards the house of the plaintiff, he cannot seek the injunction in the manner and mode indicated above.
In view of the aforementioned observations, I do not intend to
3 of 4 ::: Downloaded on - 29-10-2016 04:54:32 ::: RSA No.5929 of 2015 (O&M) {4} differ with the findings rendered by the Lower Appellate Court which are based upon the appreciation of oral and documentary evidence.
Accordingly, the appeal stands dismissed.
(AMIT RAWAL)
JUDGE
October 17, 2016
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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