R.S.A. No.1060 of 2010 (O&M) - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1060 of 2010 (O&M) Date of decision:07.09.2010. Santokh Raj S/o Rolu Ram ...Appellant Versus Santokh Raj S/o Tulsi Ram and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Padam Jain, Advocate, for the appellant. Mr. M.S.Bedi, Senior Advocate, with Ms. Gauri Bedi, Advocate, for respondent No.2. ***** RAKESH KUMAR JAIN, J. This appeal is filed by the defendant against judgment and decree of the Courts below by which suit filed by the plaintiffs for mandatory injunction has been decreed. The plaintiffs' case is that they had purchased 15 marlas of land from western side out of plot No.45/8 (6-4) for a sum of ` 2,000 from Munshi Ram son of Gura Ditta, resident of village Barriar and from the same person, the defendant had purchased 5 Marlas of land on eastern side out of plot No.45/8(6-4) for ` 1,000 on the same day i.e. 02.12.1975. Both the parties had constructed their respective houses, but the defendant constructed a room over the Gali marked as ABCD by which the passage of the plaintiffs has been blocked. In reply, the defendant has admitted that he had purchased his plot from Munshi Ram on 02.12.1975, but the alleged encroachment of the Gali shown as ABCD was denied. On R.S.A. No.1060 of 2010 (O&M) - 2 - ****** the pleadings, issues were framed. The plaintiffs examined Bishan Dass as PW1, plaintiff No.1 himself appeared as PW2, Janak Singh Dhanjal as PW3, Joginder Pal as PW4 and Gurdip Singh as PW5, whereas defendant examined Jagir Singh as DW1, himself as DW2 and Kabaljit Singh as DW3. The plaintiffs did not lead any evidence in rebuttal. The learned Trial Court, after taking into account the oral as well as the documentary evidence, decreed the suit and issued a decree for mandatory injunction directing the defendant to remove construction raised on points ABCD within two months from the date of the decree. Aggrieved against the Trial Court judgment, the defendant filed first appeal which was also dismissed on 12.01.2010 by the learned First Appellate Court with the following observations: - “16. From the evidence on the file, it is clear that in site plan Ex.P1 plaintiff has shown the passage at point ABCD which has been encroached by defendant and this passage ABCD connected house of plaintiff with street which eventually led to the G.T. Road. Plaintiff has stated that this portion marked ABCD was used by the plaintiff for ingress and outgress from his house. The existence of street at point ABCD shown in site plan Ex.P1 also finds mention in sale deed of the plaintiff i.e. Ex.PW5/A. In sale deed Ex.PW5/A the dimensions of the property purchased by plaintiff are shown as north plot of owner, south house of Thakur, east house of Bant Ram and street and west plot of Munshi Ram. This shows that on eastern side of the house of the plaintiff there existed a street. This street is none else but the portion marked ABCD alleged to have been encroached by the defendant. Even defendant in his cross-examination has admitted that his house was situated on eastern side of house of the plaintiff. Defendant has admitted that street coming from G.T. Road passes from southern side and comes to his house. He has further admitted that street is coming from G.T. Road till the house of the plaintiff and in this way, he has admitted the case of the plaintiff. Defendant has admitted that street coming from G.T.Road goes R.S.A. No.1060 of 2010 (O&M) - 3 - ****** up to the house of the plaintiff which shows that defendant has admitted the existence of passage ABCD connecting the street with house of plaintiff through passage ABCD. Even defendant has admitted that wires providing electricity to the house of plaintiff used to pass through disputed passage which shows that plaintiff had a right to use that passage. It has been rightly held that in case there existed any passage, the defendant would not have allowed the plaintiff to pass those electric wires for the purpose of providing plaintiff the electricity. 17. From the site plan produced on the file by the defendant, it is clear that this site plan shows the position of the spot after encroachment of portion ABCD by defendant. To the similar effect is the report of Local Commissioner Shri Kabaljit Singh Pannu, who has stated that there do not exist any passage at point ABCD, but this is the position after encroachment was made by the defendant. Defendant has also stated that there was no passage ABCD shown in the municipal record, but no municipal record has been produced on the file. From the perusal of site plan Ex.P1, copy of sale deed Ex.P2 and site plan Ex.PW3/B it is clear that there is no approach to house of plaintiff except gali ABCD which has been shown in the sale deeds. Moreover, in the written statement also defendant has no where stated that plaintiff has any other mode of access to his house. So from the evidence on the file, it is clear that defendant has encroached portion ABCD which was used as passage by plaintiff to his house and this passage ABCD is proved on the file and it has been encroached by the defendant. So learned lower court has rightly held that plaintiff is entitled to decree for mandatory injunction as prayed for.” Against the concurrent finding of fact of the Courts below, the present appeal has been field by the defendant, in which no question of law much-less substantial has been framed except for challenging the judgment of the Courts below on the ground that they are perverse and that the plaintiffs are estopped from filing the suit after 15 years. Learned counsel R.S.A. No.1060 of 2010 (O&M) - 4 - ****** for the appellant has, in fact, repeated the submissions which have been made before the Courts below without indicating anything from the finding which could be termed as perverse. As a matter of fact, learned First Appellate Court has threadbare discussed the evidence on record and recorded a firm finding of fact in para No.16 of its judgment to opine that the passage has been admitted by the defendant and, admittedly, the construction which is sought to be removed is over the said passage. In view of the fact that no substantial question of law has been argued before this Court, I do not find any merit in this appeal and as such, the same is hereby dismissed, however, without any order as to costs. September 07, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE