IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4869 of 2004 Date of Decision: 26.3.2009 Kimti Lal. ....... Appellant through Shri Vipin Mahajan,Advocate. Versus Shashi Pal and others. ....... Respondents through Shri Kuldip Sanwal,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 20.5.1998 and 25.8.2004 passed respectively by the Additional Civil Judge (Senior Division), Gurdaspur (hereinafter referred to as `the trial Court') and Additional District Judge ( Ad hoc ), Fast Track Court, Gurdaspur (described hereinafter as `the First Appellate Court') whereby the suit of the plaintiffs-respondent nos. 1 to 3 was partly decreed and the appeal of defendant no.2- appellant was dismissed. A suit for mandatory and permanent injunction was filed by respondent nos. 1 to 3. It was pleaded that they were owners in possession of a plot measuring 1 kanal 7 marlas fully described in the plaint, which was a part of khasra no.144 ( 2 kanals 14 marlas). The same was stated to have R.S.A.No.4869 of 2004 -2- .... been purchased by them vide sale deed dated 9.5.1994 from Tehal Singh alias Tehal Dass, who has since died and the appellant is one of his legal heirs. It was further pleaded that said Tehal Dass had raised a wall in which he had installed a door opening in the suit plot to falsely claim a right to pass through it, though his house abutted the main gali. It was alleged that the appellant and respondent nos. 4 & 5 (impleaded as defendant nos. 1 and 3 in the suit) had no right to trespass or encroach upon in any manner or to open any door, window, ventilator etc. towards their plot. Respondent nos.1 to 3 sought a direction to the appellant and respondent nos. 4 & 5 to close the door in question and to refrain from trespassing or encroaching into their plot. The appellant and respondent nos. 4 & 5 appeared and filed written statement contesting the suit. They had pleaded that Tehal Dass had purchased his plot from Sewa Kaur and Gurdial Singh vide sale deed dated 3.10.1988 and thereafter, he constructed a boundary wall of 8 feet height around it and also installed a door for ingress and egress to the same through a 2-1/2 feet wide passage on its eastern side which led to a gali. It was further pleaded that they had been using the said door and passage since then. It was alleged that in fact, respondent nos. 1 to 3 intended to block the said passage under the garb of the instant suit. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to the mandatory injunction prayed for?OPP R.S.A.No.4869 of 2004 -3- .... 2. Whether the plaintiff is entitled to the injunction prayed for?OPP 3. Whether the suit of the plaintiff is not within limitation?OPD 4. Whether the plaintiff has no cause of action to file the present suit?OPD 5. Relief. It is pertinent to mention here that after the institution of the suit by respondent nos.1 to 3, the aforesaid Tehal Dass had also filed a suit for declaration against Arjan Dass son of Hans Raj and Ravi Kumar son of Arjan Dass ( Arjan Dass is father of the present respondent nos. 1 to 3 and Ravi Kumar is respondent no.2) to the effect that he was owner in possession of the plot measuring 4 marlas fully described in the heading of the plaint. As a consequential relief, a decree of permanent injunction was also prayed for, restraining the defendants in that suit from raising any construction in the passage which was marked with letters BEFGHIJKC and shown in red colour in the site plan attached with the plaint. During the aforesaid suit, Tehal Dass died and his legal representatives were arrayed as plaintiffs. Arjan Dass and Ravi Kumar resisted the suit of Tehal Dass and pleaded that the door in question was illegally installed towards the eastern side of Ravi Kumar and his brothers, namely, Shashi Pal & Parveen Kumar. It was also pleaded that a suit for mandatory and permanent injunction had already been filed by Ravi Kumar and his brothers. R.S.A.No.4869 of 2004 -4- .... As many as three issues were framed on the basis of the pleadings of the parties. Thereafter, both these suits were consolidated and the parties were afforded opportunities to lead their evidence. After appraisal of the entire evidence on record, the trial Court partly decreed the suit of respondent nos. 1 to 3 and the appellant along with his brothers was restrained from interfering in any manner in to their plot, except in due process of law, whereas the prayer for mandatory injunction was declined. In so far as the suit of Tehal Dass was concerned, it was was decreed and a declaration was made that Tehal Dass and now his legal representatives were owner of the plot to the extent of 4 marlas out of the total land measuring 2 kanals 14 marlas comprised in khasra no.144. However, the prayer for permanent injunction was declined. Feeling aggrieved by the judgment & decree of the trial Court, both the parties filed separate appeals, which were dismissed by the First Appellate Court. This has resulted in the filing of the instant Regular Second Appeal by the appellant. Learned counsel for the appellant contended that the findings recorded by the Courts below are perverse and deserve to be set aside. Apart from this, no substantial question of law or argument was raised. It was, however, submitted that the findings have been arrived at by completely misreading of the evidence. On the other hand, learned counsel for respondent nos. 1 to 3 R.S.A.No.4869 of 2004 -5- .... contended that the findings recorded by the Courts below are pure determination of facts and since no question of law is involved, the present appeal deserves to be dismissed. I have thoughtfully considered the rival contentions. A perusal of the impugned judgments shows that in his suit, Tehal Dass had pleaded that there existed a gali to which a passage of 2-1/2 feet width led for ingress and egress from his plot ABCD upon which he had constructed a boundary wall of eight feet in height. The Courts below have concluded that even though, the ownership of Tehal Dass over the plot measuring 4 marlas was established, but the existence of gali as claimed was not proved. The existence and non-existence of a gali or a passage is a pure question of fact, which has been determined on the basis of the evidence before the Courts below. The oral evidence in the shape of depositions of the witnesses has established the existence of various houses around the disputed property, but no evidence worth the name regarding the existence of gali came on record. Thus, the pure finding of fact does not warrant interference. It is also to be seen that both the parties admitted that they were co-sharers in the khasra number in which their plots are comprised and the First Appellalte Court also observed that the appellant was free to seek partition if he so desired. In this view of the matter when no substantial question of law has been shown to have arisen and the challenge is only to the findings of fact arrived at by the Courts below and also the fact that the parties being R.S.A.No.4869 of 2004 -6- .... co-sharers, the injunction against a co-sharer could not have been granted, I am of the opinion that the appeal is completely devoid of any merit and deserves dismissal. Ordered accordingly. March 26,2009 ( Mahesh Grover ) “SCM” Judge