RSA No.3564 of 2006 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3564 of 2006 Date of Decision: 8.12.2008 Sulakhan Singh ..Appellant. Vs. Swaran Singh and another . ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Sandeep Arora, Advocate for the appellant. Mr.Rajesh Kumar, Advocate for respondent No.1. Mr.B.P.S.Virk, Advocate for respondent No.2. RAKESH KUMAR JAIN, J. The plaintiff is in second appeal. The plaintiff filed the present suit for permanent injunction seeking to restrain defendants from illegally and forcibly dispossessing him from the portion marked `DEGIJ' and also for a decree for mandatory injunction against defendant No.1 for directing him to close the door of his house at point E which has been opened by him towards the property of the plaintiff. The basic averments of the plaint are that plaintiff was owner in possession of the house shown by letters `ABCDEGIJKL' in the site plan. The portion marked `DEGIJ' being part of his house was left for his ingress and egress. The said portion was purchased by the plaintiff from Balbir Singh and Tarsem Singh by way of registered sale deed dated 16.12.1991. It was thus, prayed that defendant No.1 who has no right, title or interest in the portion marked as `DEGIJ' be RSA No.3564 of 2006 -2 - restrained from encroaching upon the same and defendant No.2 be also restrained to construct the portion marked `DEGIJ' as a pacca street. In the written statement, it was denied that the plan showing the portion `DEGIJ' is a part and parcel of the house of the plaintiff. It was rather pleaded that portion marked `IHJC' in the site plan of the defendant is a common street of the parties and one Bachan Singh and is being used by the answering defendant for the last more than 22 years without any interruption. It was alleged that defendant had purchased a plot measuring 4 ½ marlas on eastern side of his old house through agreement of sale dated 13.11.1984 for a consideration of Rs.900/- on which he had constructed one room and installed toka machine and a gate which now form part of the property in dispute. Defendant No.2 was proceeded against ex parte vide order dated 21.1.1997. The plaintiff filed replication controverting the averments made in the written statement and reiterated the stand taken in the plaint. From the pleadings of the parties, following issues were framed by the trial Court including Additional issue No.6-A, which was framed on 28.7.2000: 1. Whether the plaintiff is owner in possession of the house marked as ABCDEFGH? OPP. 2. Whether the disputed portion CDEF as shown in the site plan mark X/1 is a part and parcel of the house of the plaintiff? OPP. 3. Whether the disputed portion CDEF marked in the site plan marked and IHJC is a public passage as alleged in the written statement? OPD. 4. Whether the suit as framed is not maintainable? OPP. 5. Whether the plaintiff has no locus standi to file the present suit? OPD. RSA No.3564 of 2006 -3 - 6. Whether the plaintiff is entitled to special costs u/s 35-A CPC? OPD. 6-A:Whether the plaintiff is entitled to grant of mandatory Injunction as prayed for? OPP. 7.Relief. In order to prove his case, plaintiff examined PW1 Balbir Singh, PW2 Pawan Kapil Draftman, PW3 Chanchal Singh, plaintiff himself appeared as PW4, Tarsem Singh as PW5 and Onkar Singh, Panchayat Secretary as PW6. On the other hand, defendants examined Jagir Singh Draftman as DW1 and himself appeared as DW2. The plaintiff did not lead any evidence in rebuttal. After appreciating the evidence of both the parties, learned trial Court decided issues No.1 to 3 in favour of the defendants and against the plaintiff whereas issues No.4 to 6 were not pressed by the counsel for the defendants. As Such, suit of the plaintiff was dismissed with costs. The first appeal also met the same fate. Learned counsel for the appellant has vehemently contended that the portion marked as `DEGIJ' is the land owned by the plaintiff. The main controversy between the parties is that as to whether the portion shown as CDEF in the site plan mark X/1 which is shown as 'DEGIJ' in the site plan of the plaintiff is a street or is a property of the plaintiff. The disputed portion is a rectangular portion measuring 11 feet 6 inch in width in the site plan Ex.P1. On the southern side of the disputed portion is the house of Bachan Singh, on the northern side is the house of the defendants, on the western side is the house of the plaintiff and on the eastern side there is a main pacca street. PW1 Balbir Singh has admitted that initially there was house of Darshan Singh on the northern side of the suit property. There was a street RSA No.3564 of 2006 -4 - on the eastern side of house of Darshan Singh and it is the same street which he had described in the sale deed on the eastern side of the suit property. He has also admitted that on the western side of house of Darshan Singh there was a common wall and in between there was no street. He has also admitted that the house situated on the western side of house of Darshan Singh was having a passage from his southern side. On the western side of the suit property, there is house of the plaintiff. Site plan Ex.D1 is proved by the defendant. PW1 Balbir Singh has admitted in the cross-examination that door of the house of the plaintiff is depicted as IC in the site plan Ex.D1. He has also admitted that receipt Ex.PX bear his signature at point Ex.PX/1. He has admitted that on 9.9.73 vide receipt Ex.PX, he had given land measuring 8 marlas to Bachan Singh son of Natha Singh and the said writing is correct and also bear the signatures of Bachan Singh Sarpanch, Jeet Singh Panch, Mohinder Lal Panch and Darshan Singh son of Lal Singh. Site plan Ex.P1 reveals that on the southern side of the suit property is the house of Bachan Singh. Balbir Singh, who has appeared as PW1 is the author of the receipt Ex.PX. He has admitted that the contents of the said receipts are correct. The execution of the said receipt and delivery of plot measuring 8 marlas to Swaran Singh is also admitted by executant Balbir Singh. There is recital in the said receipt that on the north side of the said plot, street has been left. The street on the north side of the site plan owned by Bachan Singh is the same property which is the suit property in the present case. Since the plaintiff has himself shown accordingly in the site plan Ex.P1 there is no dispute regarding the house of Bachan Singh, being at the said portion even in the site plan Ex.D1 relied upon by the defendant. Once he had admitted that he had left a street in front of the house of Bachan Singh on the RSA No.3564 of 2006 -5 - northern side, this amount to an admission on his part and later on he cannot execute the sale deed of the same property which was left by him earlier as a street. It is well settled that a person who does not have title in the property, can not transfer the same and in view of admission of the defendant in the receipt Ex.PX that he had already left the suit property as a street which means that he had abandoned all his rights in the suit property at the time of execution of Ex.PX. Moreover, he is not residing in the village after the year 1972. On the other hand, PW6 Onkar Singh had stated that in the record of the Panchayat, there is no street or passage existing in between the property of the plaintiff and the defendant. The bald statement of this witness does not help the plaintiff as he did not bring the record pertaining to the street and the house of the village nor he is in possession of such a record. In view of the above discussion, the plaintiff has failed to prove his ownership and possession over the portion marked `CDEF' in the site plan mark X/1. It is held that it is not the part and parcel of the house of the plaintiff. Thus, there is no merit in the present appeal and the same is hereby dismissed without order as to costs. (Rakesh Kumar Jain) 8.12.2008 Judge Meenu