403 1 t RSAN023260f2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA N02326 of2008 08M Dateofdecision 2682Oll BantSingh others 1 t versus 0 0 BantSinghandothers C5 Z CORAM HONBLE MR JUSTICE KCPURI C Present Mr SSBrar Advoe for the I Mrs Amit ChopraAdvocate for Nos 2 to 8 Z KCPURI J CO 7 in this regularsecondappealis the judgmentand Z decreedated 12112007passedby Shri BSSidhu Additional District 11 JudgeAdhoc Patiala vide which the appealprefenedby the plaintiffs the judgmentand decree dated 2831006 passedby Shri RanjitSingh Civil Judge 6JuniorDivision Rajpurawas partly 2 Brief facts of the case are that plaintiffs are brothersand site markedABCD shownin the siteplanis open ofplaintiffs of water of the houses of plaintiffspasses throughthe said Rashmi 2012.11.09 13: 23 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 404 RSAN02326of2008 2 commongalleryHouses ofdefendantsare situatedon westem sideofwall BC There lSno door window or ventilator or any other apertureof the housesof defendants towardsgalleryandwall BC ofthe plaintiffsGallery lll markedABCD exclusivelyowned and by the plaintiffs Defendantsare to interfere in the peace ofthe plaintiffs in the common galleryHence the suit m l 3 Defendants61ed their written statement The contents of 0 writtenstatementare thatplaintiffs have from villageMathiaran to 0 thisvillageThe defendantsadmittedthat theirgates open in thesitemarked I 0 ABCD Drainage water of plaintiffspassesthroughsite markedABCD Site markedABCD is brick pavedstreet constructedby the Gram Z videresolutiondated989 Streetis beingusedbya11 house owners Gateofdefendantshaveopened in thesiteplanin dispute at I pointB as shown in the siteplanThere are two more doors ofdefendants whichopen in thestreet in disputeDue to conditionsin Punjab Z the same were closed bydefendantsPlaintiffshave no concem CtO with site marked ABCD Correct position shown in the site planattached 7 Z with the written statement There is no of forciblyinterfering in the Om site in Theyhave the site shownin of JaswantSinghfrom Mann SinghSuit of plaintiffs is barredbySection 41 of the SpecificRelief Act and suit is false frivolousand defendantsare entitledfor special costs 4 Plaintiffs filed in which the averments of written statement weredeniedandreiteratedthosefactsofplaint 5e From the pleadings of the partiesthe followinglssues were Rashmi 2012.11.09 13: 23 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 405 0 b RSA No23260f2008 3 framede 1 Whetherplaintiffs are owners with of con gallerymarkedABCD shown in site planattachedwith plaint20PP 2 Whetherplaintiffs are entitledfor permanentinjunction as prayed for2OPP 3 Whethersuit ofthe plaintiffs is not maintainable20PD 1 4 Relief Q 5 In supportof their case plaintiffs PW 1 Sudarshan 0 0 Kumar AhujaDraftsmanPW2 Ram Vashishat PW8 Natha I C5 Singh slo ChajjaSinghwho tenderedhis af6davitEx P3 PW4 Kamail I Singhwho tenderedhis af6davitExP4 and closedtheir evidence Z 6e Defendantsalso examined DUl GurpreetSinghRegistry Clerk DV2 SurjanSinghslo Baru Singhwho tendered his af6davit C ExDW21A DW3 JaswinderSinghPanchayat Secretary who tenderedhis I C affidavitExDW31A DW4 Sukhdev Singhslo Amar Singhwho tendered Z his affldavit ExDWAIA DV5 JaspalSinghDapperAdvocate who QO tendered his affidavit ExDW51A DW6 Maan Singhslo Chauar Singh Vwo Z whotenderedhis affldavit ExDW61A DW7 Bant Singhslo Puran Singh W who tenderedhis affidavit ExDWIA DW8 SwaranSinghDrasman whotenderedhis affldavitExDW81A andclosedtheir evidence 8 The learnedtrial Court afterhearing the leamed counsel for the partiesand of the evidence dismissedtheSUlt of the plaintiff and decreedated 2832006 9 Feelingdissatisfiedwith the above said and decree dated 2872006 the plaintiffs the first appealwhich was partly byShri BSSidhu AdditionalDistrictJudgeAdhoc Patiala vide Rashmi 2012.11.09 13: 23 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 406 RSAN0326of2008 4 t and decreedated 121 12007 10 dissatistledwith the aforesaid and decrees bytheCourts below thepresentregularsecondappeal hasbeen Oled bythe 11 The in No8 of the groundsof appeal havementionedthatfollowingsubstantialquestion oflaw havearisen 1 Ct 0 iI Whetherin the facts and circumstancesof the case the 0 Call be restrainedfrominterfering 111thesuit propertywhen it hasbeen establishedthat the I sameisa publicstreet maintainedby Gram Panchayat 5 and doesnot vest withthe I ii9 Whetherin thefactsand circumstancesof the case there Z lsno legalevidenceofthe flndingsgivenbythe leamed Court 9 12 I have heard learned counselfor the partiesand have gone I r through therecordsofthe case Z 13 Learned counselfor the has submittedthat case of C the plaintiff as set forthin theplaintis thattheyare the exclusiveowners of m Z the portionABCD and lt 1S their privategalleryand defendantshaveno r rightto interferein the same The trial Court has dismissedthe suit ofthe plaintiffsholdingthat plaintiffs have failedto prove that site ABCD is the exclusive propertyof plaintiffsIt is submittedthat the First Appellate Court has also retumeda findingthat site ABCD is not exclusiveproperty of theplaintiffs now and lS a publicstreet Thereis flndingof factrecordedbyboththe Courtsbelowthat Gram Panchayat hasafflxedthe bricks in the propertyABCD So aer holdingthat suit propenyispublic street no restriction can be puton the to use the said Rashmi 2012.11.09 13: 23 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 407 RSA N02326 of2008 5 street Howeverit is submittedthat shall not encroachupon any a of the street and will use the site ABCD as a street It is also finding of fact recordedbyboth the Courts below that d4ywaterof the houseof defendants falls out in the street So the defendantshave every rightto open the door in the publicstreet and no restraintcan be putupon themThe FirstAppellateCourt has wronglyheld that defendantscannot 1 0 open the doorsin the publicstreet So far as the decreeto the extentthat 0 0 and defendantsare restrainedfrom upon the street is concernedthe haveno grievance against the saidpan D ofdecree I 14 Learnedcounsel for the has the Z and decree of the trial Court It is contendedthat therewas L between the parties restraining the defendantsto open the door So no door can be openedThe portionABCD is a privateenclosureofthe c8 plaintiffsSo the decreehas beenrightlypassed m 15 I have givenmy consideration to the rival Z contentions ofthe leamedcounselfor theparties and have gonethrough the Llm recordsofthe case 16 It is a finding of fact recordedby boththe Courtsbelow that Gram haslaid bricks in the street includingponionABCD It is alsoa fact recordedbyboththe Courts below thatdinywater ofthe houses of is in the street ABCD The First Court has recordeda findingof fact that theportionABCD is a public street The leamedtrial Court hasdismissedthe suit ofthe plaintiffs but the First AppellateCourt even after that site ABCD is a Rashmi 2012.11.09 13: 23 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 408 1 RSA N02326 of2008 6 e publicstreet dulypavedbythe GramPanchayat haspassedthe orderagainst regardingopening any door window andventilator in the street This approach of the First Appellate Coun 1S wrongand againstlaw which cannot be upheld So far as the document ExPW31A is concemedit is not brought on the Sle that in what connection the same was executed Moreso no restraint can be puton the partyto 10 usethe public street Everyresidentof thevillagewhose house falls on the 0 0 streethas therightto open door ventilator etc in thepublicstreet Plaintiffs themselveshave openedthe door in thepublicstreetand wants to restrain D the defendantsfromopening window and door on thesaidstreet No doubt it is a blind street but since thereis a findingof fact recordedby the First Z Appellate Court that the samels publicstreetand as such the defendants lr have rightto use the same as publicstreet The restraintputby the First Appellate Court againstboth the partiesthat theyshall not encroachupon c8 thepublicstreet 1S valid Nobodycan be allowed to puthindrance in the em useofthe publicstreet Z 17 So in view of the above discussion the substantial of law raised above stand determinedin favourof the to the extentmentionedabove 18 the appeal is partlyaccepted and that partof of First Appellate Court vide which the have beenrestrainedfrom openingthe door and ventilatorsstandsset aside and suit to that extent standsdismissed However therestraintput by the First Appellate Court againstboth the partiesthat theyshall not encroach uponthe street standsmaintained In Vlew ofthe peculiar circumstancesof thecase theparties are left to bear their own costs Rashmi 2012.11.09 13: 23 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 409 t RSAN023260f2008 7 X 19 A copy of this judgmentbe sent to the trial Court for strict URI 9 JUDGE August26 2011 1 Sv l 1 0 0 I C5 Z I Z aO W2 Z re Rashmi 2012.11.09 13: 23 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document