R.S.A. No. 1970 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1970 of 2007 Date of decision: 06.02.2009 Sham Singh ....Appellant Versus Hazura Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. R.K. Battas, Advocate, for the appellant. Mr. R.K. Joshi, Advocate, for respondent No. 2. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 28.8.2003 and 24.4.2007 passed by the learned Courts below vide which the suit filed by the plaintiff/respondents, seeking permanent injunction has been ordered to be decreed. The plaintiff/respondents filed a suit for injunction restraining the defendant from interfering/obstructing in any manner in the use and enjoyment of the drain shown in red and blue colour in the site plan attached with the plaint. The plaintiffs pleaded that they were owners in possession of the house and haveli, shown in yellow colour in the site plan attached and there existed a street as well as drain marked ABEF R.S.A. No. 1970 of 2007 -2- towards southern and eastern side of the abovesaid house and haveli of the plaintiffs. The rainy water of cattle shed of the haveli of the plaintiffs falls through water spot, which is at point CD, as shown in green colour, and passes through drain ABEF. It was claimed that the water of haveli also passes through the said drain. The plaintiffs claimed that defendant threatened to block the drain at points ABED illegally and forcibly, though they had no right. The suit was contested by the defendant/appellant on the plea that the street in question is a private passage of Sham Singh and his brother, and nobody else has any right to use the said passage in any manner except with the permission of Sham Singh etc. Locus standi of the plaintiffs was also challenged. Other objections were also taken. On merits, it was admitted that the plaintiffs owned a house and haveli as stated in the plaint, but assertions on merit were denied being wrong and false. Plea was taken that public street on the southern side and northern side adjoining the house of the plaintiffs was in existence, which is used for ingress and egress, and that the water of the plaintiffs flows towards said street. The existence of drain was denied. The learned Courts below on appreciation of evidence brought on record, have recorded a concurrent finding of fact that the drain marked ABEF in the site plan existed at the spot, and that the plaintiffs were entitled to permanent injunction. The objections raised by the defendant/appellant with regard to maintainability of suit and other objections were decided against the defendant/appellant. The suit was decreed. It is pertinent to mention here that before the learned lower R.S.A. No. 1970 of 2007 -3- appellate Court, the plaintiff/respondents were even allowed to lead additional evidence, and by way of additional evidence, a judgment and decree was produced on record, which was passed inter se between the parties, where the street, now in dispute, was held to be public street, and not private street as claimed by the defendant/appellant. By taking into consideration the finding of the learned trial Court, and also additional evidence brought on record, the findings of fact recorded by the learned trial Court was affirmed by the learned lower appellate Court. The learned counsel for the appellant raised the following substantial questions of law for consideration: - 1. Whether the judgments and decree passed by the learned lower appellate Court are outcome of misreading of admission made by respondent/plaintiffs and thus perverse? 2. Whether the learned Courts below could have granted relief beyond the pleadings of the plaintiffs? Learned counsel for the appellant contends that the plaintiff/respondents admitted that the defendants/appellant were three brothers, who had under mutual settlement left passage for their private use and, therefore, the contention raised is, that impugned judgments and decree passed by the learned Courts below being contrary to admission are perverse in law thus, deserve to be set aside. However, on consideration of matter, I find no force in the contention raised by the learned counsel for the appellant. The statement made by the plaintiff/respondents lost all importance in view of the R.S.A. No. 1970 of 2007 -4- decision inter se between the parties wherein on suit filed by the defendant/appellant claiming the property in dispute to be his private property, it was held that it was, in fact, a public street and not private property of the defendant/appellant. The judgment has attained finality inter se between the parties and, therefore, no error can be found with the finding of the learned Courts below holding that the property in dispute is a public street, and that the defendant/appellant has no right to interfere in discharge of rainy water and other water in the said street. The reading of the judgments and decree shows that the suit filed by the plaintiffs stands decreed. Therefore, it cannot be said that the relief granted is not as per the relief claimed or as pleaded in the plaint. The questions of law are answered against the appellant. Dismissed. (Vinod K. Sharma) Judge February 06, 2009 R.S.