Punjab-Haryana High Court
Ved Parkash And Another vs Roshan Lal And Another on 16 May, 2012
Author: K.C.Puri
Bench: K.C.Puri
RSA No. 2407 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 2407 of 2010
Date of decision 16.5. 2012.
Ved Parkash and another
...... Appellants.
versus
Roshan Lal and another
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mrs. Neena Madan, for the appellants.
Shri Ashwani Bakshi, Advocate for the respondent No.1.
Shri Vijay Chauhan, Advocate for No.2.
K.C.PURI, J.
Challenge in this appeal is the judgment and decree dated 23.2.2010 passed by Ms. Ritu Tagore, Additional District Judge, Yamunanagar at Jagadhari vide which the First Appeal preferred by the plaintiffs/appellants against the judgment and decree dated 19.7.2007 passed by Shri Ashwani Kumar, Civil Judge (Senior Division), Jagadhri was RSA No. 2407 of 2010 2 dismissed.
2. Briefly stated the plaintiff filed a suit for permanent injunction restraining the defendants from interferring in the peaceful possession of the site ABCD situated in between the houses of plaintiffs as fully described in the heading of the plaint. It is pleaded that land measuring Khasra Nos.18//20/2, 19//15, 16, 25/1 situated at Chandpur was previously owned by Abdul Hassan and Rashid Hassan sons of Sharfu along with other agriculture land. Abdul Hassan was in cultivating possession over khasra No.18/20/2 and 19/15 whereas Rashid Hassan was in cultivating possession over Khasra No.19/16 and 25/1. Rashid Hassan had chalked out a colony known as Rashid Nagar in Khasra No.19/16 and 25/1. There is a passage bearing khasra No.78 on the southern side of Rashid Nagar Colony. Rashid Hassan sold plot No.4 and 5 to defendant No.1 vide sale deed dated 8.12.1999 and while giving the description of plot Nos.4 and 5 Rashid Hassan had mentioned the existence of passage on the southern side of these plots.
3. Abdul Hassan had chalked out plots in khasra No.18.20/2 and 19/15 and had sold to the plaintiffs through a property dealer who gave the name of the colony as Shiv Nagar Colony in khasra Nos 19/15 and 18.20/2. The plaintiff purchased the plots in this colony vide sale deed dated 25.11.1982, 30.4.1990 and 14.10.1991. The previous owner left an open space in front of the plots of the plaintiffs for their common use and while calculating the price of the plots of the plaintiffs, the previous owners had added the price of open space in their plots and as such only the plaintiff RSA No. 2407 of 2010 3 had got the right to use the site in dispute. Defendant No.1 raised a construction in plot No.4 and 5 in Rashid Nagar Colony abutting the boundary wall of the plaintiffs and defendant No.1 in collusion with officials of defendant No.2 had got demolished the portion of boundary wall and tin shed, latrine khurli, etc. in the year 1995. The demolished material of the wall, latrine etc. is still lying at the spot. Defendant No.1 took undue advantage of the situation had affixed a wooden door frame and window frame in his northern wall of the plot with an ulterior motive to use the door through the site in dispute by force.
4. The suit was resisted by the defendants and defendant No.1 has taken a preliminary objection that the suit is barred under Section 11 of the C.P.C. As the civil suit was filed by Mangat Ram father of plaintiff No.1 and father-in-law of plaintiff No.2 on 3.6.1995, which was dismissed on 19.3.2001 by the court of Shri V.P.Sirohi, the then learned Additional Civil Judge ( Senior Division), Jagadhri and the appeal filed by Mangat Ram was withdrawn on 11.12.2001. The plea taken by Mangat Ram that property in dispute was not a public street was not accepted.
5. On merits, it is pleaded that disputed plots is a passage and is being used as such since 1989. All other plot owners have their doors and windows in that passage. Respondent No.1 prayed for dismissal of the suit.
6. Defendant No.2 has also resisted the suit as alleged that suit of the plaintiff is not maintainable as notice under Section 52 of the Haryana Municipal Act, 1973 has not been given. The answering respondent has constructed streets and nalies keeping in view the representation of the area. RSA No. 2407 of 2010 4 Respondent No.2 also prayed for dismissal of the suit.
7. Plaintiff filed replication controverted the averments of the written statement and reaffirmed those of the plaint.
8. From the pleadings of the parties, following issues were framed :-
1. Whether the plaintiffs are entitled to the relief of permanent injunction sought ?OPP
2. Whether the suit is barred under Section 11 CPC ?OPD
3. Whether the suit is not maintainable ?OPD
4. Whether the plaintiffs have no locus standi to file the present suit ?OPD
5. Relief.
9. The learned trial Court after appraisal of the evidence returned the finding on issue No.1 against the plaintiff. However, issues No. 2 and 3 were decided against the defendants and dismissed the suit of the plaintiffs vide judgment and decree dated 19.7.2007.
10. However, the plaintiffs/appellants feeling dissatisfied with the judgment and decree dated 19.7.2007 passed by Shri Ashwani Kumar Civil Judge (Junior Division), Jagadhri, preferred the first appeal. The said appeal was dismissed vide judgment and decree dated 23.2.2010 by Ms.Ritu Tagore, Additional District Judge, Yamunanagar at Jagadhari.
11. Still feeling dissatisfied with the aforesaid judgments and decrees, the plaintiff/appellants have preferred the present regular second appeal.
RSA No. 2407 of 2010 5
12. The appellants in paragraph No.10 of the grounds of appeal have mentioned that following substantial question of law have arisen in the present regular second appeal :-
1. Whether the impugned judgments and decrees passed by the learned courts below are manifestly illegal, perverse and are result of misreading of pleadings and evidence and as such liable to be set aside ?
2. Whether the misreading of evidence by the learned courts below by itself is a substantial question of law ?
3. Whether there is any evidence on record to prove that the property in dispute is a public street ?
4. Whether adverse inference should have been drawn by the learned courts below against the defendants for not producing the record by defendant No.2 i. e. Municipal Council with regard to the property in dispute to the effect that the same is a public street ?
13. Learned counsel for the appellants has submitted that both the Courts below have held that there is a street and that finding is based upon mere conjectures and surmises. Both the Courts below have misread and misinterpreting the evidence on the file. Record of Municipal Committee mentioning suit property as passage has not been produced. In the absence of that record, both the Courts below have committed grave error and as such the appeal is liable to be accepted.
14. Counsel for the respondent has supported the judgments and decrees passed by both the Courts below.
15. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case.
RSA No. 2407 of 2010 6
16. Both the Courts below have appreciated the evidence on the file and reached to the conclusion that suit property is a passage. That being a finding of fact cannot be interferred in the regular second appeal. No doubt, the trial Court has held that the previous judgment and decree does not operate as res judicata but that judgment is a relevant piece of evidence. The stand taken by Mangat Ram father of the plaintiff in the earlier suit is that the suit property is a private passage and the trial Court after adjudicating returned the finding against the father of the plaintiff. The appeal was preferred but the same was withdrawn. The plaintiff now wants to agitate the same fact that the suit property is not a public passage. In the earlier suit also the defendant has taken a stand that it is a public passage and the doors of house of defendant and other residents opened in the street. The stand taken by Mangat Ram is also that it is a public street and has been constructed with bricks by the Municipal Committee. There is nothing on the file that judgments and decrees of both the Courts below are the result of misreading and misinterpreting the evidence on the file. The map produced by the plaintiff does not depict the correct position whereas the map Ex.D-4 produced by the defendants depict actual possession at the spot.
17. Consequently, I have no hesitation in holding that no substantial question of law has arisen in the present appeal.
18. Consequently, the appeal is without any merit and the same stands dismissed.
RSA No. 2407 of 2010 7
19. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI ) JUDGE May 16, 2012 sv