RSA No. 2512 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2512 of 2011 (O&M) Date of Decision: 01.6.2011. Dinesh Dutt .......Appellant Vs. Om Parkash and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Raj Mohan Singh, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for permanent injunction. The case of the plaintiff in brief was that the plaintiff was having his residential house adjacent to portion ABCD shown in red colour in the site plan. The gate of the house of the plaintiff opened in the said street. Plaintiff was using the portion in dispute for ingress and outgress purposes for his house. The house of the defendants was on the western side of the house of the plaintiff, after crossing street ABCD. Defendants were trying to forcibly encroach upon the portion ABCD and to raise construction thereon. Hence, the suit for permanent injunction was filed by the plaintiff. Defendants No. 1 and 2, in their written statement, denied the contentions in the plaint. It was averred that the RSA No. 2512 of 2011 (O&M) -2- street in dispute was owned and possessed by the defendant No.1. A latrine had been constructed by the ancestors of defendant No.1 over the portion of the property in dispute. Plaintiff wanted to open a gate from his house towards the suit property under the garb of present suit. Defendants No. 3, in its written statement, averred that it was not necessary party. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPP 6. Whether this court has no jurisdiction to entertain and try the present suit? OPD 7. Relief.” Civil Judge (Senior Division) vide judgment and decree dated 31.3.2009 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed by the Additional District Judge vide judgment and decree dated 16.4.2010. Hence, the present appeal by the plaintiff. RSA No. 2512 of 2011 (O&M) -3- After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Plaintiff had filed the suit seeking relief of permanent injunction restraining the defendants No. 1 and 2 from encroaching the portion shown with letters ABCD in the site plan Ex.P-1. I have seen the site plan Ex.P-1 during the course of arguments. A perusal of the same reveals that the house of the plaintiff is on the eastern side of the passage in dispute whereas, the houses of the defendants are on the western side of the portion in dispute. A perusal of the site plan Ex.P-1 further reveals that the doors and windows of the house of the plaintiff do not open in the passage in dispute. Rather, it appears that the plaintiff uses the gate on the southern side to reach the street. Hence, it cannot be said that the passage in dispute was being used by the plaintiff for ingress and outgress purposes. As per Ex.P-1 a latrine had been constructed over some portion of the site in dispute by the defendants. In these circumstances, both the courts below, after appreciating the evidence led by the parties, have given a finding of fact that the property in dispute is not a public street. The said finding of fact cannot be interfered with by this court in appeal. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE June 01, 2011 Gurpreet