Regular Second Appeal No.2558 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2558 of 2009 Date of decision: 15.07.2009 Roshan Lal s/o Kundan, Caste Saini, r/o Mohalla Naraindass, Sadhaura, District Yamunanagar. ..... Appellant. Versus 1.Smt. Mukhtiari widow of Sardha Ram r/o Mohalla Naraindass, Sadhaura, District Yamunanagar. 2.Sher Singh s/o Sardha Ram,r/o Mohalla Naraindass, Sadhaura, District Yamunanagar. 3. Jai Pal s/o Sardha Ram, r/o Mohalla Naraindass, Sadhaura, District Yamunanagar. 4.Ram Nath s/o Sardha Ram r/o Mohalla Naraindass, Sadhaura, District Yamunanagar. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. Ashwani Talwar, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 01.12.2007, rendered by the Court of Civil Judge (Junior Regular Second Appeal No.2558 of 2009 2 Division), Jagadhri, vide which it dismissed the suit of the plaintiff for permanent injunction, and the judgment and decree dated 19.05.2009, rendered by the Court of Additional District Judge, Yamuna Nagar at Jagadhari, vide which it dismissed the appeal. 2. The facts, in brief, are that the plaintiff claimed the property, in dispute, as fully described in the head note of the plaint and shown in the site plan, appended with the same, to be a Chabutra, in front of his house, constructed by him, at the time of construction of the same (house). It was stated that the houses of the defendants are situated, adjoining the house of the plaintiff, towards the eastern side. It was further stated that the defendants were adamant to cause interference in the use of the said Chabutra, by the plaintiff and wanted to use the same as a thoroughfare. It was further stated that they were asked, many a time, not to do so, but to no avail. On their final refusal, to desist from their illegal designs, left with no alternative, a suit for permanent injunction, was filed. Regular Second Appeal No.2558 of 2009 3 3. The defendants, put in appearance, and contested the suit, by way of filing their joint written statement. They pleaded therein that the suit was not maintainable; and that the plaintiff had no cause of action to file the suit. It was stated that the site, in dispute, had been wrongly shown in the site plan, submitted by the plaintiff. It was further stated that there exists a drain, constructed by the Municipal Committee, and a street on the southern and western sides of the site, in dispute. The factum of existence of any chabutra, as alleged by the plaintiff, was denied. It was further stated that, in fact, there was a street and the defendants had every right to use the same. It was further stated by the defendants that the plaintiff wanted to encroach upon the street, by claiming it to be a chabutra. The remaining averments were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court:- “1- Whether the chabutra is in existence as alleged by the plaintiff ?OPP Regular Second Appeal No.2558 of 2009 4 2- Whether the plaintiff is entitled to injunction as prayed for ?OPP 3- Whether the plaintiff has no cause of action to file the present suit ?OPD 4- Whether the suit of the plaintiff is not maintainable ?OPD 5- Relief.” 5. The parties led evidence, in support of their case. The trial Court, after hearing the Counsel for the parties, and, on going through the evidence and record of the case, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was also dismissed by the Court of Additional District Judge Yamuna Nagar at Jagadhari, vide its judgment and decree dated 19.05.2009. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. Regular Second Appeal No.2558 of 2009 5 9. The Counsel for the appellant submitted that a local commissioner was appointed in this case, who submitted his report to the effect that the chabutra, as alleged by the plaintiff, was in existence, at the spot. It was further submitted that even from the evidence, produced by the plaintiff, it was proved that the Chabutra, in question, existed at the spot. He further submitted that the Courts below dismissed the suit of the plaintiff, on mere conjectures and surmises. He further submitted that the judgment and decree of the Courts below, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. It is evident from para no.13 of the judgment of the trial Court, that the plaintiff himself appeared as PW-1 and during the course of cross-examination, he categorically admitted that there was neither any plate-form, nor the latrine was in existence, at Regular Second Appeal No.2558 of 2009 6 the spot. He, however, stated that a ditch of the latrine was present. Sham Lal, PW-2, Patwari, also admitted during the course of cross-examination that in the site plan, Ex.P-3, chabutra had not been shown, in existence. Sunil Sarao, Advocate, who was appointed as Local Commission, proved his report, Ex.P-8 and the rough site plan, Ex.P-9, prepared by him, at the spot. In cross-examination, it was stated by him that no chabutra existed at the spot. Even Ex.P-10, the site plan, prepared by J.L. Lamba, Draftsman, produced by the plaintiff, on record, did not support his case, with regard to the existence of chabutra. The concurrent findings of fact, recorded by the Courts below, that the chabutra, as alleged by the plaintiff, was not existing at the spot, and as such, the question of interference in the user of the same, did not at all arise; and that the plaintiff was not entitled to the injunction, prayed for, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference by this Court. The submission of the Counsel for the appellant, being Regular Second Appeal No.2558 of 2009 7 without merit, must fail, and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) July 15, 2009 Judge dinesh