R.S.A. No. 1095 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1095 of 2007 (O&M) Date of Decision : 13.2.2009 Radhey Lal .......... Appellant Versus Lekhi alias Lekh Raj ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Manoj Kumar Sood, Advocate for the appellant. Mr. Lokesh Sinhal, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 16.3.2007 passed by the learned lower appellate Court vide which suit filed by the plaintiff / appellant for injunction stands dismissed. The plaintiff / appellant brought a suit for injunction claiming to be exclusive owner in possession of the residential property situated within the abadi deh of village Alawalpur, Tehsil Palwal, District Faridabad. It was pleaded that property is the ancestral property of the plaintiff and that defendant has no concern with the suit propertty in any capacity. It was claimed that house of defendant falls in Ghar No. 1388, Ahata No. 591 which is situated adjacent to the gali in dispute shown by red colour marked with letters LMBK in the Shijra Paimash bearing its No. R.S.A. No. 1095 of 2007 2 1396 which leads to the suit property from main rasta bearing no. 1398. It was also the case of the plaintiff / appellant that disputed passage is in existence since the times immemorial and was being used for ingress and egress to the house of the plaintiff and other houses situated in the locality i.e. for the defendant and Phool Singh etc. without any interruption and thus right of easement was also claimed. It was also pleaded that defendant was trying to merge the passage in his house. The suit was contested wherein it was pleaded that plaintiff- appellant had no locus standi and cause of action to file the present suit. Besides other preliminary objections, on merit it was asserted that the plaintiff has got the alternative passage bearing Ahata no. 602, Ghar No. 1399 and that the defendant was lawful owner in possession of Ahata No. 591, Ghar No. 1388. It was claimed that the disputed passage was not in existence as alleged by the plaintiff and, thus the plaintiff has no easementary right especially when there was an alternative passage. The learned trial Court decreed the suit. However, the learned lower appellate Court reversed the finding of the learned trial Court by observing as under :- “12. Admittedly, the plaintiff is the owner in possession of the residential property bearing its Ahata no. 598, Ghar no. 1395 as shown in the Aks Shijra. Admittedly, the defendant is the owner in possession of Ahata no. 591, Ghar no. 1388 as shown in the copy of Aks Shijra Ex.P2. The stand taken up by the respondent- plaintiff as argued by his counsel Shri P.P. R.S.A. No. 1095 of 2007 3 Gosain is that there exist the rasta no. 1396 at the spot as shown in the copy of khasra paimaish Ex.P4. This plea cannot be accepted in view of the fact that no doubt the rasta no. 1396 has been mentioned in the copy of khasra paimash Ex.P4 but the plaintiff failed to prove the exact location and existence of rasta no. 1396. The defendant / appellant has specifically pleaded in his written statement that he has no concern with rasta no. 1396 and, therefore, the plaintiff/ respondent cannot claim any rasta from Ghar no. 1388 which is admittedly owned and possessed by the defendant / appellant. Admittedly, Devender Singh Pahil, Advocate was appointed as Local Commissioner in the case who submitted his report dated 29.5.2001 in which he has mentioned that the dispute between the parties is regarding the old gate of the house of the plaintiff at point A B which is being completely blocked by a newly constructed wall at about 8 ft. High which is shown with red colour in the site plan and there is no other way for ingress or outgress to the house of the plaintiff. Admittedly, the defendant was directed to remove the construction of wall in front of t he house of the plaintiff vide order dated 5.6.2001 and,therefore, the prayer of the plaintiff for the issuance of the mandatory injunction directing the defendant to remove the obstruction caused by the construction of wall R.S.A. No. 1095 of 2007 4 in front of his house has become infructuous. The plaintiff has failed to examine Devender Singh Pahil, Advocate to prove the report dated 26.5.2001 and to ascertain as to how and in what manner he based his findings and conclusion in the report dated 26.5.2001 which shows that no demarcation was ever conducted by Devender Singh Pahil, Advocate Local Commissioner qua the rasta no. 1396 in the absence of which it cannot be said that there exist the rasta at the spot. The defendant is having no concern with the alleged rasta no. 1396 as he is in possession of Ghar no. 1388. The plaintiff has failed to lead any cogent oral or documentary evidence in support of the fact that the defendant/ appellant has encroached upon the alleged rasta no. 1396 which could have been located only by demarcation which was not done by the Local Commissioner at the spot. The house of the plaintiff/ respondent is adjacent to rasta no. 1399 which falls towards west of his Ghar no. 1395 from the very beginning. The plaintiff has not led any cogent evidence in support of the fact that he was using any rasta towards north of khasra no. 1395 and, therefore, he is estopped by his act and conduct to say that there exist rasta no. 1396 at the spot. Until and unless rasta no. 1396 is located on the basis of demarcation which can only establish the exact place where the rasta is actually located. It is only thereafter carrying out the R.S.A. No. 1095 of 2007 5 demarcation that it can be proved as to whether any person including the defendant has made any encroachment upon the said rasta or not ? Needless to say that even if some portion of Ghar no. 1388 belonging to the defendant/ appellant is lying vacant at the spot and is being used by the appellant/ defendant as a chabutra and sahan, it does not mean that the plaintiff/ respondent shall have the right to use the said portion as the passage for going to his house against the wishes of the appellant/ defendant who is in possession of the property. The plaintiff/ respondent is only entitled to use the area of rasta no. 1396 where it is found located after demarcation in accordance with law in the absence of which he cannot seek the decree for permanent injunction against the appellant / defendant regarding the property bearing Ahata no. 591, Ghar No. 1388 owned and possessed by the defendant / appellant. Taking this view of the matter, I am of the view that the learned trial court has wrongly appreciated the evidence in its true perspective while deciding all the issues in favour of the plaintiff and, therefore, the findings recorded by the learned trial court on all the issues are hereby reversed and it is held that the plaintiff has no cause of action and locus standi to file the suit which is not maintainable in the present form. The plaintiff has failed to prove that there exist the R.S.A. No. 1095 of 2007 6 disputed gali/ rasta at the spot alleged to have been encroached upon by the defendant and, therefore, he is not entitled to the relief of permanent injunction restraining the defendant from blocking the said rasta and consequently, the judgment and decree dated 24.1.2006 passed by the learned trial court is quashed and set aside.” The learned counsel for the appellant contended that this appeal raises the following substantial question of law for consideration by this Court :- “Whether the learned lower appellate Court misread the documentary and oral evidence brought on record and also misdirected itself in non-suiting the plaintiff/ appellant merely because the Local Commissioner was not examined, even though, objections were raised against his report ? On the request of the learned counsel for the appellant, this Court on 23.1.2009 passed the following order :- “ In pursuance of the order dated November 15, 2007, report has been received from the Tehsildar, Palwal, wherein a passage has been shown on the eastern side of khasra No. 1397 and western side of khasra No. 1388.In the report, it is pointed out that the said passage is encroached upon by Phool Singh S/o Shivcharan and Radhey Lal s/o Jeet Ram. This fact is disputed by the plaintiff by alleging that the defendant / respondent has against constructed a wall. R.S.A. No. 1095 of 2007 7 The report does not show the construction of any wall. Learned counsel for the appellant contends that the wall has been constructed by defendant / respondent. However, this plea is contrary to the report submitted. It would, therefore, be appropriate to appoint Mt. Atul Gaur, Advocate (Enrolment No. P/126/03) as Local Commissioner to visit the spot and record finding as to who has encroached upon the passage, which admittedly stands encroached. The Local Commissioner shall be paid a sum of Rs. 10,000/- (Rupees ten thousand only) plus travelling expenses by the appellant. The Local Commissioner shall visit the spot on 7.2.2009 at 12.00 noon. Parties are directed to be present and assist the Local Commissioner in preparation of the report. The Local Commissioner shall be at liberty to record statement of any person. The report be submitted by the adjourned date. To come up on 13.2.2009. Copy of the order be given to the Local Commissioner and counsel for the parties under signatures of the Court Secretary.” However, the appellant has failed to comply with the order passed by this Court regarding appointment of the Local Commissioner. In view of non compliance of the order passed by this Court and in view of the fact that the findings recorded by the learned lower R.S.A. No. 1095 of 2007 8 appellate Court are based on appreciation of evidence, it cannot be said that the judgment and decree of the learned lower appellate Court is outcome of misreading of evidence. No fault can be found with the findings recorded by the learned lower appellate Court merely because of non-examination of the Local Commissioner to prove the said report in Court. No merit. Dismissed. 13.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE