Punjab-Haryana High Court
Ajit Singh And Others vs Madha Singh And Others on 23 November, 2009
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 684 of 2008
Date of Decision : November 23, 2009
Ajit Singh and others
....Appellants
Versus
Madha Singh and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. B.R.Mahajan, Advocate
T.P.S. MANN, J.
Suit filed by the respondents for permanent injunction, was decreed by the learned Courts below and the appellants were restrained from making any construction whatsoever over the passage bearing Khasra No.2167, which was a public thoroughfare leading to the cremation ground of Patti Behniwal. The defendants are now before this Court by way of a second appeal filed under Section 100 of C.P.C.
In their plaint, the plaintiffs-respondents had stated that they were residents of Ward No. 6, Sultanwind Pind, Patti Behniwal and there was one passage leading from the village to the cremation ground. The said passage was being used by the villagers since time immemorial and part of the passage fell in Khasra No.2167. However, the defendants in connivance with some others got sanctioned mutation of Khasra No.2167 in their names illegally and thereafter, they were trying to raise construction over the passage for which they had no right.
The defendants denied the existence of any passage in Khasra R.S.A. No. 684 of 2008 -2- No.2167 leading to the cremation ground. They claimed that the suit property belonged to Jarg Brig and they were his legal heirs. The mutation of the land situated in Khasra No.2167 was rightly sanctioned in their favour. They had constructed pucca kothas and khurlies in the same and running business of dairy farming for the last more than 30 years. The plaintiffs were out to grab the suit property for which they had no right.
After going through the evidence brought on the record and hearing learned counsel for the parties, both the Courts below concurrently held that the passage in Khasra No.2167 was used by the plaintiffs and other persons to approach the cremation ground and, accordingly, the suit was decreed.
The plaintiffs had relied upon the sale deeds Ex.P1 and P2 alongwith their translation Ex.P3 and P4 respectively, besides jamabandis Ex. P5 to P7 wherein the suit property was reflected to be gair mumkin rasta. Even in the jamabandis Ex.PX and PY brought on record by the defendants, Khasra No.2167 was recorded as gair mumkin rasta. The plaintiffs' specific stand that the passage in dispute existed since time immemorial had not been denied by the witnesses examined by the defendants. Even the existence of cremation ground was admitted by the witnesses examined by the defendants. Under these circumstances, the learned Courts below were justified in granting the relief of injunction to the plaintiffs so as to restrain the defendants from raising any construction over the passage in question.
When the matter was pending before the lower appellate R.S.A. No. 684 of 2008 -3- Court, an application under Order XLI Rule 27 C.P.C. was filed by the defendants-appellants so as to bring on record jamabandi for the year 2001-02 in respect of Khasra Nos.2155 to 2157 and 2140 by way of additional evidence. The defendants wanted to show from the said jamabandi that Khasra No.2167 was surrounded by other Khasra numbers, which were owned by private persons and, therefore, neither any passage existed at the spot nor the suit property touched the cremation ground.
The suit was filed in the year 1996 and decided on 13.6.2006. The defendants had sufficient opportunity to place on record, by way of evidence, the jamabandi for the year 2001-02 but they failed to do so. As such, learned lower appellate Court rightly declined the application filed by the defendants-appellants for additional evidence.
In view of the above, it cannot be said that the concurrent findings of facts arrived at by the learned Courts below were against the records or suffering from any illegality or infirmity. These findings cannot be disturbed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as framed by learned counsel for the appellants, do not arise for determination. The appeal is, therefore, dismissed in limine.
( T.P.S. MANN )
November 23, 2009 JUDGE
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