RSA No.3616 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3616 of 2010(O & M) Date of Decision:10.09.2010 Amrit Lal & anr. .... appellants Versus Shamsher Singh & Ors. .....respondents RSA No.3617 of 2010(O & M) Date of Decision:10.09.2010 Amrit Lal & anr. .... appellants Versus Mahender Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sandeep Goyal,Advocate for the appellants **** RAKESH KUMAR GARG J.(ORAL): CM No.10674-C of 2010 Civil Misc.application is allowed subject to all just exceptions. Delay, if any, in making up the deficiency in Court fee is condoned. CM disposed of. RSA No.3616 of 2010(O & M) 2 RSA No.3616 of 2010(O & M) This is defendants' second appeal challenging the judgement and decrees of the courts below whereby suit for permanent injunction of the plaintiff-respondents restraining the appellants from causing obstruction in their peaceful enjoyment and user of the suit property, was decreed. Vide this appeal, connected appeal No.3617 of 2010 is also disposed of as both the appeals have arisen from the judgement and decree dated 27.02.2009 passed by learned trial Court in Civil Suit No.RBT 106 of 2007 titled as “Mahender Singh vs.Amrit Lal & Ors.”and Civil Suit No.104 of 2007 titled as “Shamsher Singh & Ors.vs.Amrit Lal & Ors.”involving the similar controversy on facts and law. However, the facts are taken from RSA No.3616 of 2010. In brief, the facts of the suit as averred by plaintiff- respondents are that land measuring 1 kanal constituting 20/1246 share in the total land comprised in khewat No.372/495/1 as per the jamabandi for the year 1990-91 was owned and possessed by him on the basis of sale deed dated 24.05.1995 executed by one Nigaiya Ram son of Ram Nath, the predecessor-in-interest of appellants. It is further case of the plaintiff- respondent that after purchasing the land, he constructed a boundary wall and was using the same as bara. There was a 10 feet wide joint street as shown in the red colour in appended site plan towards the southern side of their bara. This 10 feet wide gali was left by Nigaiya Ram, the vendor of plaintiffs-respondent No.1 and 2 as well as by the plaintiffs-respondents No.1 and 2 themselves by leaving 5 feet width each. Plaintiffs-respondents were in peaceful enjoyment and user of the suit property since the date of purchase. The suit property i.e 10 feet wide gali on the southern side of the plot of the plaintiffs-respondents was the only way of their approaching and there was no other passage to connect the bara of plaintiff-respondent RSA No.3616 of 2010(O & M) 3 No.1. The said Nigaiya Ram had died and the defendants-appellants are his LRs who have no right, title or interest in the suit land and are threatening to interfere illegally and forcibly in their peaceful enjoyment and user of the suit property. Hence the present suit. Upon notice, the defendants appeared and filed their written statement. Defendant No.2(proforma respondent No.3 in the appeal), in his separate written statement admitted the claim of plaintiff-respondents. Defendant No.1,3 and 4 in their separate written statements submitted that there exists no gali on the Southern side of the suit property as shown in the site plan by the plaintiff-respondents and the only passage which leads to the suit property is from the western side of the suit property of plaintiff No.1 and 2 which exists from the time of consolidation. It was pleaded that vide registered sale deed dated 06.01.1993 appellant No.1 along with his brothers had purchased land measuring 1 kanal 2 marlas comprised in rect.No.71, killa No.13 min, from appellant No.2 who is son of Nigaiya Ram and since then appellant No.1 along with his brothers had constructed a residential house on the said site which is shown to be house of Ram Chander in the site plan filed by plaintiff respondent No.1. Since there was already a passage in existence leading to the property of the plaintiff- respondent, there was no reason to leave another passage for the said plot and appellant No.1 was owner in possession of the aforesaid land and, therefore, there was no question of any threat to interfere into his alleged right of enjoyment which does not arise. Dismissal of the suit was prayed for. Both the courts below on appreciation of evidence have recorded a concurrent finding of fact that there exists a gali as alleged by the plaintiff-respondent. The aforesaid finding has been recorded on the basis of recital in the sale deed dated 24.05.1995( Ex.P-2) which is coupled with the admission of Amrit Lal, appellant who has appeared in the witness RSA No.3616 of 2010(O & M) 4 box as DW2. In his cross-examination, he has admitted that there is a 10 feet wide gali on the southern side of the plot of respondents No.1 and 2. The only controversy, between the parties in the suit is whether there exists a gali as alleged by the plaintiff-respondent on the southern side of his bara is, essentially a question of fact. The aforesaid question of fact has been adjudicated by the courts below on the basis of the evidence on record. It is not a case that the findings of the courts below are without any evidence so that the same can be termed as perverse findings. Hon'ble Supreme Court in the case of Gurdev Kaur & ors. vs. Kaki & Ors. 2006(2) RCR Civil 561, while interpreting the scope of Section 100 of the Code of Civil Procedure, held that High Court has no jurisdiction to interfere with the findings of fact arrived at by the trial Court and the First Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear, that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” Thus, no substantial question of law arises. No merits. Dismissed. (RAKESH KUMAR GARG) JUDGE 10.09.2010 neenu