R.S.A. No. 1761 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 1761 of 2009 (O&M) Date of decision : 31.8.2010 ... Kulveet Kaur and others ................Appellants vs. Tara Devi and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Sudhir Aggarwal, Advocate for the appellants Sh. S.S. Walia, Advocate for the respondents. ... K.C. Puri, J. This is a regular second appeal preferred by the defendant- appellants against the judgment dated 7.3.2009 passed by Sh. Kishore Kumar, Additional District Judge, Ludhiana, vide which the appeal preferred by the defendant-appellants against the judgment dated 23.2.2007 passed by Smt. Jatinder Walia, PCS, Additional Civil Judge (Senior Division), Jagraon, was dismissed. In a suit for permanent injunction, Ramesh Kumar Arora filed counter claim (hereinafter to be referred as 'plaintiff'), against defendant-appellants for decree of mandatory injunction directing the R.S.A. No. 1761 of 2009 -2- defendants to remove the wall illegally and forcibly constructed in the passage and thereby blocking the passage for the eagress and engress of the plaintiff and also blocking the door/gate of his house on the Northern side. Briefly stated, originally Kulveet Kaur and others, now defendant-appellants, filed a suit for permanent injunction against the present plaintiff-Ramesh Kumar seeking permanent injunction restraining him from demolishing wall AB as shown in the site plan. Ramesh Kumar filed counter claim in that suit. The plaintiff withdrew the said suit. The counter claim has been decided by the trial Court. The case of the plaintiff-Ramesh Kumar is that Wall has been constructed illegally in front of his house blocking his passage to the street as there is no other passage on the Northern side of his house. It is alleged that he is owner in possession of house situated in street No. 5-1/2 L, Gurdeep Nagar, Jagraon, District Ludhiana. At the time when plaintiff had purchased the plot, some construction was already there and iron gate was also in existence on the Northern side. There was no wall in existence in between the house of Gurnam Singh and Surjit Singh, and the common passage. The plot in question was purchased from Gurdeep Singh Grewal, vide registered sale deed dated 30.10.1975 and in that sale deed also passage has been shown. The plaintiff is posted as Secretary at Mehal Kalan, in the Market Committee and remained outside for his official duty. On 13.4.1998, defendants gathered in the presence of local MLA Bhag Singh Mallah and local police and they illegally and forcibly raised illegal construction in the shape of wall and thus blocked the passage R.S.A. No. 1761 of 2009 -3- and the gate of the house of the plaintiff on the Northern side. In reply, defendants have taken preliminary objections that suit is barred by limitation, the site plan is not correctly drawn, plaintiff is estopped by his own act and conduct in filing the suit. On merits, it is pleaded that there was no iron gate in existence as alleged by the plaintiff. There was wall at the end of street No.4. There is no common passage. The site plan attached with the sale deed is not correct. It is denied that there was any passage on the Northern side of the house of the plaintiff. It is pleaded that street No. 4-L is the exclusive ownership of the defendants and the plaintiff has no right to claim any usage of the same. The wall is in existence for the last more than 35 years. In rejoinder, filed on behalf of the plaintiff, the averments of the written reply were denied and those of counter claim were reiterated. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are entitled to the permanent injunction as prayed for? OPP 2. Whether the defendant is entitled to the mandatory injunction as prayed for in the counter claim?OPD 3. Whether the plaintiffs have no locus standi to file the present suit?OPD 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the suit filed by the plaintiffs is liable to be R.S.A. No. 1761 of 2009 -4- rejected U/O 7 Rule 11 CPC? OPD 6. Whether the plaintiffs are estopped by their act and conduct to file the present suit?OPD 7. Whether the plaintiffs are barred by the law of acquiescence? OPD 8. Whether the counter claim is not within limitation? OPP 9. Whether the counter claim is estopped to file it by his act and conduct? OPP 10.Whether the site plan filed with the counter claim is incorrect? OPP 11.Relief. Learned trial Court has taken up issues No. 1 and 3 to 7 together. These issues were held to have become infructuous as original plaint has been withdrawn by the plaintiff. Issues No. 2 and 8 were decided in favour of the plaintiff/counter claimant and against the defendant-appellants. Issues No. 9 and 10 were not pressed. In view of findings on issues No. 2 and 8, the counter claim was decreed, vide judgment dated 23.2.2007 passed by Smt. Jatinder Walia, PCS, Additional Civil Judge (Senior Division), Jagraon. Feeling dissatisfied with the above said judgment, the defendant-appellants filed the Ist appeal and the same was dismissed vide judgment dated 7.3.2009 passed by Sh. Kishore Kumar, Additional District Judge, Ludhiana. Still feeling dissatisfied with the judgments dated 23.2.2007 and 7.3.2009, referred to above, the defendant-appellants have preferred the present regular second appeal. R.S.A. No. 1761 of 2009 -5- The defendant-appellants in paragraph No. 11 of the grounds of appeal have mentioned that following substantial questions of law are involved in the present appeal:- i) Whether learned First Appellate Court was not bound to decide the appeal on merit specifically when the finding of the trial Court has been challenged on merit also? ii)Whether the respondents can be impleaded as legal representatives of deceased Ramesh Kumar Arora without filing any application U/O 22 Rule 3 of CPC? iii)Whether finding of the learned trial Court is not based on misreading of evidence? Learned counsel for the appellants has submitted that trial Court has misread and misinterpreted the evidence on the file. The compromise has been placed on the file, from which it is revealed that wall in dispute was constructed in the year 1990. The present counter claim has been filed in the year 1998. So, the suit is hopelessly time barred. I have considered the said submission, but do not find any force in that submission. Learned trial Court has elaborately dealt with the aspect of compromise and reached to the conclusion that defendant-appellants have failed to prove the compromise. From the perusal of the judgment of the Ist Appellate Court, it is revealed that the factum of compromise has not been disputed in the Ist appeal as in paragraph No. 8 of the judgment of the Ist Appellate Court, it is mentioned that no other argument has been advanced by counsel for the appellant on the merits of the case and qua the finding which has R.S.A. No. 1761 of 2009 -6- already been rendered in favour of the plaintiff/counter claimant. The only challenge before the Ist Appellate Court is that counter claim is not maintainable, in as much as, application under Order 22 Rule 3 CPC for impleading LRs of Ramesh Kumar has not been filed. However, that aspect did not find favour with the Ist Appellate Court. The appellants having realized that said aspect has been duly dealt with by the Ist Appellate Court and that has become a finding of fact, has not addressed any argument on the applicability of provisions of Order 22 Rule 3 CPC in the present appeal, inspite of framing a specific question of law in this regard. There is nothing on the file to show that judgment of the trial Court is a result of misreading of the evidence on the file. From the perusal of the map produced on the file, it is crystal clear that wall AB is towards the common passage. The plaintiff has a right to open the door in the common passage and nobody can restrict him from doing so. The argument advanced by counsel for the appellants to the effect that since there is a door on Southern side of the house of the plaintiff and on that account, he cannot open passage towards Southern side in the street, is without any basis. In the sale deed in favour of Ramesh Kumar, which is of the year 1975, passage has been shown in southern side also. It so seems that due to high handedness of defendant-appellants, the passage of southern side at point AB shown in the map, has been closed. There is nothing on the file to show that the street in question is the private street of the defendant-appellants. So, I have no hesitation in holding that no substantial R.S.A. No. 1761 of 2009 -7- question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed with costs. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 31.8.2010 Judge chugh