R.S.A. No. 2058 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.Ms. No. 6135-C & 6136-C of 2009 and R.S.A. No. 2058 of 2009 Date of decision: 19.05.2009 Raghbir and others ....appellants versus Dharampal ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Kamal Mor, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 6135-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 86 days in refiling the appeal. For the reasons stated in the application, C.M. is allowed and the delay of 86 days in refiling the appeal is ordered to be condoned. C.M. No. 6136-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of six days in filing the appeal. It has been averred in the application, that the appellants approached the counsel for filing the appeal well within time. However, in view of the fact that the counsel was out of station and could not immediately file the appeal, has resulted in delay of six days. R.S.A. No. 2058 of 2009 (O&M) -2- The averments made, which are supported by an affidavit, make out sufficient cause for condoning the delay of six days in filing the appeal. Consequently, the delay of six days in filing the appeal is ordered to be condoned. C.M. stands allowed. R.S.A. No. 2058 and C.M. No. 6137-C of 2009 This regular second appeal is directed against the judgment and decree dated 1.10.2008 passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/respondent for permanent injunction restraining the defendant/appellants from encroaching upon or obstructing the passage from P-1 to P-4 shown in the site plan attached with the plaint, has been ordered to be decreed. It was the case set up by the plaintiff/respondent that he purchased a plot measuring 10 marlas having passage 16 feet wide in front of the plot. The plaintiff has constructed a house. The plea of the plaintiff/respondent was, that the passage is running throughout and is being blocked at point P-1 to P-4. The suit was contested by the defendant/appellants by raising a plea that as per sale deed executed in favour of the plaintiff/respondent, the plaintiff/respondent was given a passage of 5 ½ feet and the rest of the property was that of defendant/appellants. The plaintiff/respondent had no locus standi to claim right of passage from the private property of the defendant/appellants. The learned trial Court took note of the stipulation in the sale deed and came to the conclusion that passage of 5 ½ feet was left for use by the plaintiff/respondent, therefore, dismissed the suit. R.S.A. No. 2058 of 2009 (O&M) -3- However, in appeal, the learned lower appellate Court has been pleased to reverse the finding by holding as under: - "From examination of record in light of aforesaid rival contentions, it is crystal clear that as per plaintiff, defendants had created 16 feet Rasta in north of his plot and other Rastas while selling out the plots to different persons. The defendants have no right to restrain plaintiff and other from the use of 16 feet wide Rasta marked by letters P1, P4 and M and N by creating obstructions. PW15 Dharampal in his affidavit Ex.PW15/A reiterated pleadings of plaint regarding preparation of site plans Ex.PW1/1 and PW1/2, carving out of 19 plots from agriculture land with 16 feet wide Rasta by defendants, purchase of 10 Marla land through sale deed dated 19.1.1997 by him, construction of house consisting of six rooms, two kitchen, latrine bathroom etc., existence of Rasta P1 and P4 as the only Rasta to his plot. PW1 Subhash Chand Gupta, deed writer proved having prepared site plans Ex.PW1/1 and PW1/2. PW2 Sunder Lal, Telegraph Officer proved telegram Ex.PW2/1 and receipts Ex.PW2/2 and PW2/3. PW3 and PW6 Shyam Sunder, PW7 Jaswant Singh, PW8 Prabhu Dayal Advocate, PW9 Sunil Kumar Gupta, deed writer, PW10 Suresh Singh, PW11 Surender Chand Aggarwal, PW12 Braham Pal and PW14 Chander Singh stated regarding execution of sale deeds and proved copies of sale deeds as Ex.PW8/2, PW10/1 to PW10/4, Ex.PW12/1 and PW12/2 as well as Ex.PW14/1 & 2 respectively. As per defendants, Dharampal, Shyam Sunder and Ganga Parsad were sold northern portion of Killa No.20 with 1 karam wide Rasta in Killa No.20. As such, plaintiff had got no right, title or interest in the land of Killa No.11 R.S.A. No. 2058 of 2009 (O&M) -4- which has been left out by defendants for their own use and is being used by purchasers of Killa No.11. DW6 Raghbir Singh, defendant No.1 reiterated pleadings of written statement in his affidavit Ex.DW6/A. DW5 Hukam Singh and DW4 Jai Parkash supported the case of defendants. Defendant and his witness in cross-examination stated that the length of plots of Dharampal, Ganga Parshad and Shyam Sunder was equal. Except Rasta in north of the plots there is no other Rasta for ingress and egress to their plots. DW3 Devender Kumar draughtsman in his affidavit Ex.DW3/A stated that he had prepared site plan Ex.DW3/1. In cross- examination he stated that plot possessed by Dharampal is shown in green colour. DW1 Sanjay Sangwan and DW2 Prabhu Dayal Gupta proved execution of sale deeds and its copy Ex.DW2/1. As per sale deed dated 19.01.1997 Ex.PW14/1, plaintiff had purchased 10 Marla of land in Killa No.20 with one karam wide Rasta in South. Therefore, it is held that the plaintiff is owner in possession of plot shown by letters QRST. As per sale deeds both dated 11.2.1987 Ex.PW10/3 and PW10/4, one karam wide Rasta is in existence in north of the plots purchased by Ganga Parsad and Shyam Sunder respectively. One karam wide Rasta in the south of plot of plaintiff is not in existence. Defendants in para No.1 C of written their statement had stated that ganga Parsad, Shyam Sunder and Dharampal had purchased northern portion of land situated in Killa No.20 with one karam wide Rasta. As such, it is held that the plaintiff is owner in possession of plot shown by letters QRST with one karam wide Rasta in north and construction thereon. As per statement of PW10 R.S.A. No. 2058 of 2009 (O&M) -5- Suresh Singh, head registration clerk and sale deed dated 9.3.1988, Raghubir Singh defendant No.1 had sold 15 marlas of land in Killa No.11 to Om Parkash, Ranjit Singh and Smt. Santra with boundaries 10 feet wide Rasta in east, land in west and north and 10 feet wide Rasta with 5 feet wide Rasta in south. In view of above material facts, it is apparent that 16 feet wide Rasta is in existence in between plots owned by Om Parkash, Ranjit, Smt. Santra, Dharampal, Shyam Sunder and Ganga Parsad. Therefore, the plea of defendants that they had left area in southern portion of Killa No.11 for their own use and for use of purchasers of Killa No.11 is contrary to sale deed dated 9.3.1988 proved by PW10 Suresh Singh, head registration clerk. The ratio of judgment in Sayed Mohammad Mashur Koya Thangal's case (supra) that plaintiff could only succeed on the strength of its case and not on the weakness found in the case of defendant is not in doubt. The ratio of Gurmail Singh's case (supra) that document not exhibited in evidence cannot be construed and considered by the Courts is not at issue. Likewise, the principle of law noticed in Bhagwan Das's case (supra) that document exeucted between strangers not parties to suit cannot be relied on is not at issue. Perusal of aforesaid material facts in light of aforesaid principle of law clearly show that one karam wide Rasta in Killa No.20 and 10 feet wide Rasta in Killa No.11 is in existence between plots of Om Parkash, Ranjit Singh, Smt. Santra and Dharampal, Shyam Sunder and Ganga Parsad. The principle of law in Gurbachan Singh, Vinod Kumar, Messrs. Trojan & Co., Siddu Venkappa Devadiga and Anathula Sudhkar's cases (supra) do not help the case of R.S.A. No. 2058 of 2009 (O&M) -6- defendants. As such, findings of learned lower court on issues No.1 to 3 are unsustainable and are reversed and issues no.1 to 3 are decided in favour of plaintiff. Accordingly, point of determination is decided in favour of appellant – plaintiff." The learned counsel for the appellants contends that the appeal raises the following substantial question of law: - "Whether the judgment and decree passed by the learned lower appellate Court is outcome of mis- reading of documentary and oral evidence, thus, perverse?" In support of the substantial question of law, the learned counsel for the appellants contends, that the learned lower appellate Court erred in law in reversing the judgment and decree passed by the learned trial Court, by mis-reading the documentary evidence on record. The contention of the learned counsel for the appellants is, that in the sale deed executed in favour of the plaintiff/respondent passage left was only 5 ½ feet wide and, therefore, he could not claim more area as passage. The finding recorded, therefore, cannot be sustained. This plea of the learned counsel for the appellants cannot be accepted. It is not the passage used only by the plaintiff/respondent, but also by other plot holders, who have been sold plots by defendant/appellants or other co-sharers of the land. The learned lower appellate Court, therefore, was right in coming to the conclusion that the passage which is sought to be blocked was the only passage available with the plaintiff/respondent, therefore, he had right to use the same as other plot holders. The finding recorded by the learned lower appellate Court is R.S.A. No. 2058 of 2009 (O&M) -7- based on appreciation of evidence, which cannot be said to be outcome of mis-reading, as contended. The substantial question of law raised is answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge May 19, 2009 R.S.