Punjab-Haryana High Court
Avtar Singh vs Ajit Singh on 11 February, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.4741 of 2011 (O&M)
Date of decision: 11th February, 2014
Avtar Singh
Appellant
Versus
Ajit Singh
Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. N.K. Nagar, Advocate for the appellant.
RAKESH KUMAR GARG, J.
CM No.13797-C of 2011 Application is allowed subject to all just exceptions and the delay, if any, in making up the deficiency in court fee is condoned. CM No.13798-C of 2011 For the reasons mentioned in the application, which is supported by an affidavit, delay of 54 days in re-filing the appeal is condoned.
The application stands disposed of.
CM No.13799-C of 2011 For the reasons mentioned in the application, which is supported by an affidavit, delay of 37 days in filing the appeal is condoned.
Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4741 of 2011 (O&M) 2
The application stands disposed of.
RSA No.4741 of 2011 This is defendant's second appeal challenging the judgments and decrees of the Courts below whereby suit of the plaintiff-respondent for mandatory and permanent injunction has been decreed.
As per the plaintiff-respondent, he owned and possessed the disputed house wherein he was residing along with his family. The appellant along with his family was residing in the adjoining house on the northern side situated in Khasra No.226 purchased by him vide registered sale deed dated 25.10.2009. House of the defendant in Khasra No.226 situates on the northern side of the village street situated in Khasra No.227; whereas house of the plaintiff, shown in green colour in the site plan, abuts the said street on eastern side. The aforesaid street is used by the plaintiff and other inhabitants of the village and vests in the Gram Panchayat of village Mangewal, Tehsil Payal and is depicted in Jamabandi for the year 1998-99 and is under its management and control and was brick paved by it. The disputed passage is 70 feet long and 9 feet wide. This passage is also depicted in plan Table survey of village Mangewal, Doraha as prepared by the Executive Engineer, Panchayati Raj, PWD (C&M) Division, Ludhiana. This passage connects Pakka road on the southern side. The defendant has illegally shown the disputed passage as open yard of his house in the site plan furnished by him in Civil Suit titled as 'Avtar Singh v. Ajit Singh'. The disputed passage actually is bounded on the east by Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4741 of 2011 (O&M) 3 the house of defendant and on its south is Pakka road. The main gate of house of the defendant is actually on the eastern side and he has forcibly and illegally installed an iron gate by raising small walls in the disputed passage abutting Pakka road on the southern side and also raised wall on the eastern side in Khasra No.227 forcibly and illegally. He also planted Mulberry tree in the said passage forcibly and illegally, thereby obstructing the villagers. A door, a window and a ventilator of the house of plaintiff open in the street in dispute. The defendant has filed suit for permanent injunction against him with an intention to grab the passage in dispute situated in Khasra No.227 by committing above referred illegal acts of raising a wall, installation of gate and planting of Mulberry tree. Despite his requests, the defendant did not demolish such construction nor removed the iron gate and the Mulberry tree. Hence, the suit.
Defendant filed written statement raising various preliminary objections. On merits, it was stated that the suit property was courtyard of his house and was not a public street, as alleged. After its purchase by him, the defendant has all the rights in Khasra No.226 along with those in Khasra No.227 and is in peaceful and continuous possession of the same since purchase and he had got brick-paved the property in question at his own expenses and have installed the door and constructed the boundary wall without any interruption. However, it was admitted that house of the plaintiff is shown in green colour in the site plan but it was added that the same was ancestral house of the plaintiff and defendant in equal shares and was situated in Khasra No.228. It Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4741 of 2011 (O&M) 4 was further admitted that house of the defendant is on northern side of the house of plaintiff and situated in Khasra No.226. It was also averred that house of the plaintiff abuts the courtyard of house of the defendant and does not abut any public street. Filing of the previous suit for permanent injunction by the defendant against the plaintiff, raising of construction of wall, installation of gate in the disputed area and planting of Mulberry tree was admitted by the defendant. He also admitted that the disputed area falls in Khasra No.227. Existence of door, a window and a ventilator in the house of plaintiff opening towards the property in dispute was also admitted but it was claimed that the same have been opened by the plaintiff after filing of the aforesaid suit by the defendant. Remaining averments were denied and dismissal of the suit was prayed for stating that earlier also the plaintiff had filed a petition under Sections 7 and 11 of the Punjab Village Common Lands (Regulation) Act, 1961 and after filing its reply by the defendant, the same was withdrawn; and thereafter, he had filed a petition under Section 133 Cr.P.C. before the SDM, Payal which was also dismissed on 30.06.2001 and even his appeal against the aforesaid order was also dismissed on 05.08.2004 by the Additional District Judge, Ludhiana.
The plaintiff filed replication reiterating the averments made in the plaint as correct and denying the allegations made in the written statement.
On the basis of the pleadings of the parties, the following issues were framed by the trial Court:
Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4741 of 2011 (O&M) 5
1. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP
2. Whether the plaintiff is entitled to prohibitory injunction as prayed for? OPP
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the suit land is courtyard of the house of defendant as alleged? OPD
5. Relief.
Vide judgment and decree dated 16.02.2009, suit of the plaintiff was decreed with costs by the trial Court and a mandate was issued against the defendant to demolish the iron gate and walls along with the Mulberry tree from the spot in Khasra No.227, as reflected in the site plan Ex.P1 in the area shown in red colour, within two months. The defendant was also restrained from raising such construction or planting any tree or raising any obstruction/hindrance in Khasra No.227 in question without following due course of law.
Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the first appellate Court, which was also dismissed vide judgment and decree dated 18.01.2011.
While dismissing the appeal, the lower appellate Court observed as under:
"After considering the rival contentions of Ld. Counsel for the parties and perusing the pleadings and Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4741 of 2011 (O&M) 6 evidence on the file, Ex.P1 is site plan relating to the disputed property. It is admitted case that the street consists in Khasra No.227. As per Ex.P2, Jamabandi on the file, it reveals that Khasra No.227 is ownership of Gram Panchayat and is common passage. The similar position is in Ex.P4 which is Akshsajra showing that Khasra No.227 is common passage. The defendant appeared as DW-1 and admitted in his cross-examination that Khasra No.227 is ownership of Nagar Panchayat Deh and is common passage. As per the Akshsajra Ex.P4, on the northern side of passage, there is Khasra No.226 and on the western side there is Khasra No.228. As per Ex.P3, Khasra No.226 is ownership of plaintiff to the extent of 8/15 share with other persons and of Khasra No.228 Smt.Mukhtair Kaur and others are recorded as owners as per Ex.P5. The passage is connecting to the metaled road. The contention of Ld. Counsel for the appellant that he has got easementry right on Khasra No.227 is also not tenable as it is property of Gram Panchayat. Though the defendant stated that he has brick paved the property and constructed drains in it with the permission of Gram Panchayat, but it remained unproved on the file. Even the defendant when appeared as DW-1, has admitted in his cross-examination that suit property is a street. The passage bearing Khasra No.227 ends at Khasra No.226 does not infer that it becomes private property of defendant. The law relied upon by Ld. Counsel for the appellant is not applicable to the case in hand and distinguishable as the facts of the present case are different from the cases referred to in the judgment cited by him before the Court. The law relied upon by counsel for the respondent is fully applicable to the case in hand.Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4741 of 2011 (O&M) 7
As such, I am of the view that the trial Court has rightly decreed the suit of the plaintiff."
Still not satisfied, the defendant has filed the instant appeal submitting that the following substantial question of law arises in this appeal:
Whether the judgments and decrees of the courts below are not liable to be set aside being perverse and unsustainable on the basis of material on record?
I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below.
It is admitted case of the parties that the passage in dispute falls in Khasra No.227. As per Ex.P2, Khasra No.227 is the ownership of Gram Panchayat and is a common passage. Even the Aksh-Shajra Ex.P4 shows that Khasra No.227 is a common passage.
Even the defendant while appearing as DW-1 admitted in his cross-
examination that Khasra No.227 is ownership of the Nagar Panchayat Deh and is a common passage. As per the Aksh-Shajra Ex.P4, on the northern side of passage in dispute, there is Khasra No.226 and on its western side there is Khasra No.228. As per Ex.P3, Khasra No.226 is the ownership of plaintiff to the extent of 8/15th shares with other persons and of Khasra No.228 Mukhtiar Kaur and others are recorded as owners as per Ex.P5. The passage is connecting to the metalled road.Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4741 of 2011 (O&M) 8
In view of the aforesaid overwhelming evidence on record, it cannot be said that the findings recorded by the courts below are perverse in any manner, whereby it has been held that the passage in dispute is the property of the Gram Panchayat. In view thereof, no fault can be found with the findings of the courts below granting mandatory injunction in favour of the plaintiff-respondent and against the defendant-appellant.
No other argument has been raised.
Thus, the sole substantial question of law, as raised, does not arise at all in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE February 11, 2014 rps Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court