Punjab-Haryana High Court
Sadhu Singh vs Harnam Singh on 9 May, 2000
Equivalent citations: (2000)126PLR236
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Sadhu Singh son of Nagina Singh was the defendant in the trial Court and he has filed the present R.S.A. which has been directed against the judgment and decree dated 15.11.1979 passed by Addl. District Judge, Patiala, who allowed the appeal of plaintiff Hamam Singh and by setting aside the judgment and decree of the trial Court decreed the suit of the plaintiff for possession of the land denoted by letters ABCD shown in site plan Ex.P.1 The first Appellate Court also granted a decree for possession of the strip measuring 13.5 sq. ft. as shown by letters EFGH in the said site plan, as in the opinion of the learned Addl. District Judge, Patiala this area has been encroached by the defendant.
2. Some facts can be noticed in the following manner:
The suit was filed by Harnam Singh on the ground that he had purchased a plot from Pritam Singh and Asa Singh and had exchanged a plot out of this purchased land with the defendant vide exchange deed dated 12.7.1967. The defendant is alleged to have encroached upon the remaining plot of the plaintiff including the strip ASCD and EFGH. It was further alleged by the plaintiff that the defendant had opened the door and window towards the plot ABCD for which the mandatory injunction was sought against the defendant.
The suit was contested by the defendant, who pleaded that the construction was raised by him in the presence of the plaintiff and after due demarcation. The door and window were opened by him as these were necessary enjoyment for enjoyment of light and air.
3. From the pleadings of the parties, the trial Court framed the following issues :-
1. Whether the defendant got the suit site from the plaintiff in exchange and is in possession on that basis ? OPD (Objected to)
2. Whether the plaintiff is entitled to the injunction prayed for? OPP
3. Relief.
4. The trial Court decided issue No. 1 in favour of the defendant by holding that it cannot be said that defendant is in illegal possession of the disputed site. Issue No. 2 was also decided in favour of the plaintiff. While deciding issue No. 3, the Trial Court held that since it was not clear as to which side the defendant has encroached, therefore, the defendant should pay Rs. 300/- to the plaintiff and in that case the suit of the plaintiff shall be deemed to have been dismissed. In case the defendant does not pay the amount, then the suit of the plaintiff for the strip denoted by letters EFGH shall be deemed to have been decreed.
5. Aggrieved by the Judgment and decree of the trial Court, the plaintiff filed the first appeal before the Court of Addl. District Judge, Patiala, which came to the conclusion that the defendant has encroached upon the area denoted by letters ABCD and also encroached a strip of 13.5 sq. ft. of land in portion EFGH in excess. Therefore, the suit of the plaintiff was decreed for possession. The judgment and decree of the trial Court was set aside. This time the defendant has filed the present regular second appeal.
6. I have heard Shri Inderjit Malhotra, Advocate on behalf of the appellant, Shri K.S. Grewal, Advocate for the respondent and with their assistance have gone through the record of this case.
7. Before I deal with the submissions raised by the learned counsel for the appellant, it will be proper for me to incorporate paras No. 9,10 and 11 of the judgment of the first Appellate court, which read as follows:-
"9. Ex. D1 would show that Sadhu Singh was given 240 sq. feet of land and the report of the Local Commissioner establishes that his possession is on excess of that area. The trial Court observed that it cannot be ascertained as to on which side the defendant had made encroachment. A reference to the site plan Ex. p1 would make the position clear. On eastern side there is a passage, on the Western side there is a drain. Obviously, the encroachment could not have been on either of these sides. While giving a plot measuring 20' x l2' to the defendant, it was given keeping in view the passage and the drain on East and West side. This fact would itself establish that the encroachment is on the portion EFGH for which the trial Court passed a decree, but that was only an alternative relief given, in case the defendant did not deposit a sum of Rs. 300/-.
10. As regards the site ABCD, Ex. P2 is a copy of the sale deed. This would make the position clear that Harnake Singh had purchased the site also from Pritam Singh son of Asa Singh and Asa Singh son of Tulsi. To the Northern side is mentioned a common passage. In the site plan Ex.P.1 there is shown a drain running to the North of side ABCD. However, the site plan Ex. P clarifies the boundaries mentioned in the sale deed Ex.P2. There is a street to the North of this portion ABCD. The defendant was given vide Ex.D1 area 20' x 12' and he cannot be said to be owner of in possession of the site ABCD which was purchased by the plaintiff vide sale deed Ex.P2. The length of the plot on the Northern side is mentioned as 21' in sale deed Ex.P2 and it so indicated in the site plan Ex.P3. The plaintiff is to the south of the house constructed by defendant Sadhu Singh who has encroached upon the portion EFGH which he is required to vacate. The report of the Local Commissioner establishes that fact that there is the encroachment made by the defendant and this would be on the area EFGH. He is occupying 13.5 Sq. feet of area in excess which he is required to vacate. Since the plaintiff is proved to be owner of ABCD because of the sale deed in his favour, so the encroachment has been made by the defendant on the Southern side and the trial Court could certainly make out as to on which side there is encroachment made by the defendant. The report of the Local Commissioner is dated 30.1.1978 and is per se admissible in evidence. Ex. D1 is the important document which shows the area which was given to the defendant and the measurements could be carried out as to if he was in possession of the area measuring 20' x 12'. Since the area in his possession is more than that so he is to remove the encroachment upon 13.5 Sq. feet of the land. The findings of the trial court on issue No. 1 are modified and the plaintiff is held to be owner of the site in dispute i.e. ABCD and EFGH. So far as the findings on issue No. 2 are concerned the defendant claims easement of necessity. He has a passage running to the Eastern side of his house. There is a open space by way of drain towards the West which means that there is no construction adjoining his house. It would permit free flow of air into the room and there would be no obstruction to the light. However, the legal position is that since the plaintiff is the owner of the property ABCD, so he can raise construction in his own side, if he so desires, but the defendant cannot be restrained from making an opening in the wall in the street. As such the suit for mandatory injunction would fall.
11. In view of my above discussion, I accept the appeal and set aside the judgment and decree of the trial Court. The suit of the plaintiff stands decreed for possession of the land XBCD and 13.5. Sq. feet of land in the portion EFGH which the defendant has illegally encroached upon in excess and the area given to him by virtue of Ex. D1. I leave the parties to bear their own costs.
8. Shri Malhotra attacked the judgment of the first Appellant Court and submitted that there is no proof on the record that the plaintiff was the owner of the site denoted by letters ABCD and similarly it is also not established on the record that defendant had encroached upon any portion of the land forming part of the area denoted by letters EFGH.
9. I am not convinced with the argument raised by the learned counsel for the appellant. The case set up by the plaintiff was that he had purchased a plot from Pritam Singh and Asa Singh and then he exchanged a plot out of the purchased land with the defendant vide exchange deed dated 12.7.1967. In these circumstances, I have to see what was given to the defendant in exchange on the basis of document dated 12.7.1967 (exchange deed), placed on record. A reading of this document would show that Sadhu Singh defendant was given only 240 Sq. Ft. of the land, In order to determine the area now occupied by the defendant, a Local Commissioner was appointed. As there is a passage and a street on the eastern and western side of the plot, the encroachment, if any, made by the defendant could only be towards northern and southern side. The defendant was given a plot of 240 Sq. ft and the measurements of the plot are 20' x 12'. The report of the Local Commissioner establishes that there is an encroachment made by the defendant and that was on the area denoted by letters EFGH. On this site the defendant has encroached an area measuring 13.5. Sq. Ft. Now it is to be seen whether the plaintiff is the owner of the site denoted by letters ABCD which is on the north of the site which was given to the defendant in exchange. Ex.P.2 is the sale deed in favour of the plaintiff which would show that he had purchased the site from Pritam Singh son of Asa Singh and Asa Singh son of Tulsi. The reading of the sale deed would show that on the northern side of the plot purchased by the plaintiff there is a common passage. This clearly indicates that the area which was purchased by the plaintiff starts from common passage. The reading of Ex.P1 further shows that there is a street on the northern side. The site Plan Ex.P3 also shows that there is a street on the northern side. The length of the plot on the northern side is mentioned as 21' in the sale deed Ex.P2. In this view of the matter, the solitary argument raised by the learned counsel for the appellant that the plaintiff has not be able to establish the ownership of the site falls to the ground. On the strength of the sale deed Ex.P2, the plaintiff was the owner of the site denoted by letters ABCD. The exchange in favour of the defendant was only for 240 sq. ft. The report of the Local Commissioner suggests that the defendant had encroached an area measuring 13.5 Sq. Ft. from the area covered by letters EFGH. Moreover, on the southern side of the plot, which was given in exchange to the defendant, the site of Harnam Singh plaintiff adjoins. This is again indication that the site EFGH was the ownership of Harnam Singh, out of which an area measuring 13.5 Sq. ft. has been encroached.
10. Faced with this difficulty, the learned counsel for the appellant then submitted that since the defendant has raised construction over the area measuring 13.5 sq. ft. forming part of the area EFGH and that the appellant is a poor cobbler and if he is called upon to demolish the construction over the encroached area, he would suffer irreparable loss. The learned counsel submitted that the trial Court awarded a sum of Rs. 300/- to the plaintiff being the price of the encroached area and this amount has already been deposited by the defendant and, therefore, this Court should decline the relief to the plaintiff with regard to possession over the area measuring 13.5 Sq. ft. forming part of the site EFGH.
11.The contention of the learned counsel for the appellant has to be viewed in all seriousness because the area involved on the southern side of the construction of the defendant is very small i.e. 13.5 Sq. ft. In these circumstances, it will be a great hardship to the defendant if he is called upon to demolish his shelter. Rather this Court is inclined to give suitable compensation to plaintiff Harnam Singh, who will be entitled to the market price of the area measuring 13.5 Sq. ft. as it stands today and it shall be determined by the executing Court. So far as the ownership vis-a-vis site ABCD in Ex.P1 is concerned, it is proved that on the basis of sale deed Ex.P2 plaintiff is the owner of the same. Therefore, the defendant has no right to encroach upon this area. This site has to be vacated by the defendant and I affirm the decree passed by the first Appellate Court when it had granted a decree for possession of the site marked ABCD in the site plan Ex. P1. Further, the defendant is directed to close the doors which he had opened abutting the site ABCD, within three months from today, failing which it will be always open to the plaintiff/decree-holder to get these doors closed through the assistance of the Court.
With above modification in the matter of relief to the defendant, his appeal is hereby dismissed with no order as to costs.