RSA No.1480 of 2009 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1480 of 2009 (O & M) Date of Decision: 08.02.2010. Charan Singh .……Appellant Versus Shanti Devi and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Vivek Singla, Advocate for Mr. Rahul Vats, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.4404-C of 2009 For reasons mentioned in the application which is accompanied by affidavit, delay of 462 days in refiling the appeal is condoned. Main Appeal. Charan Singh plaintiff has come to this Court by way of instant second appeal, having remained unsuccessful in both the Courts below. Plaintiff filed suit for mandatory injunction alleging that he is owner in possession of Atta Chakki whereas defendants are owners of house No.177, both situated at Vishnu Nagar, Jagadhari. There is a close private street of the plaintiff measuring 6 feet into 12 feet towards north-west of the residential house of the defendant, but about a month before the filing of the suit, the defendant had opened a door into the said private street without any right to do so. The RSA No.1480 of 2009 (O & M) -2- plaintiff accordingly sought mandatory injunction directing the defendants to remove the said door. Defendants inter alia pleaded that the disputed steet is a common passage and is not a private passage of the plaintiff alone. The defendants have right to open door in the said street. The door in question was installed by defendants 31 years ago and they have been using the same since then. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jagadhari vide judgment and decree dated 25.10.2005, dismissed the suit of the plaintiff. The first appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 17.07.2007. Feeling aggrieved, the instant second appeal has been preferred by the plaintiff. I have heard learned counsel for the appellant and perused the case file. The defendants' predecessor purchased plot No.177 vide sale deed dated 10.07.1969 EX.D-1 from one Haridev. In boundaries thereof, 6 feet vide passage has been shown to be existing between plots of shop Nos.9 and 10. Later on, the plaintiff purchased his property vide sale deed dated 18.03.1974 from the same vendor Haridev and in the said sale deed also the aforesaid passage was mentioned. It is thus apparent from the documentary evidence of both the parties that the disputed street is a common passage and is RSA No.1480 of 2009 (O & M) -3- not a private passage of the plaintiff alone. The mere fact that the passage is located between shop Nos.9 and 10 owned by the plaintiff would not make it a private passage of the plaintiff alone. On the other hand, Haridev was owner of the entire property which is now owned by the parties and was also owner of the disputed passage. He left the passage as a common street as is evident from the sale deeds in favour of the parties. There is no cogent evidence to prove that the said passage is the private passage of the plaintiff alone. There is no infirmity much less illegality or perversity in the concurrent finding of both the Courts below to this effect. No question of law much less substantial question of law arises for determination in the instant second appeal. In view of the aforesaid discussion, I find that the appeal is completely without any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 08.02.2010 A. Kaundal