R.S.A.No. 527 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 527 of 2007 (O&M) Date of decision: 22.9.2009 Sandeep (minor) and another ......Appellants Versus Dilbag Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vivek Chaudhary, Advocate, for the appellants. Mr.B.B.Kaushik, Advocate, for the respondents. **** SABINA, J. Plaintiffs – respondents filed a suit for mandatory injunction, which was decreed by the Civil Judge (Sr.Divn.), Kaithal vide judgment and decree dated 1.5.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Kaithal vide judgment and decree dated 29.9.2006. Hence, the present appeal by the defendants. R.S.A.No. 527 of 2007 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. That the plaintiffs and defendants are residents of village Geong. In between the houses and baras of the parties, there exists a street which falls in Khasra No.927 as per jamabandi for the year 1996-97. It has been further alleged that the defendants have encroached upon a portion of the street attached by way of raising constructions. The plaintiffs and other villagers moved an application for the demarcation before the competent authorities upon which the demarcation of the said gali was done and found that defendant No.2 Rai Singh has encroached upon some portion of the gali and is in illegal possession of the same. As per the plaintiffs, they resisted the said encroachment made by defendants and approached the concerned authorities but the Gram Panchayat Geong in collusion with the defendants, have not taken any action and failed to stop the defendants from said illegal encroachment. Due to the said encroachment, the street has been narrowed. The ingress and outgress to the houses and baras of the plaintiffs and other villagers has become difficult. The defendants have been repeatedly requested to remove the illegal encroachment made on the portion of the street R.S.A.No. 527 of 2007 (O&M) 3 illegally but the defendants are adamant and finally refused to do on 10.6.2002. With these pleadings, the plaintiffs have prayed for passing of a decree of mandatory injunction thereby direction the defendants to remove the encroachment made by the defendants on the street/gali duly shown in the site plan as early as possible. 3. Suit was contested by the defendants (appellants) by filed written statement controverting the pleas made in the plaint. Several preliminary objections regarding maintainability; cause of action, and locus standi etc. were taken. It has been further pleaded that provisions of order 32 rule 3 and 4 are not complied with. There is no khasra no.927 falling in between the houses as alleged. As per the defendants, they have made no construction over the suit land. The present suit has been filed due to rivalry in the village. The demarcation report, if any, is illegal and not binding over the defendants. The suit of the plaintiff is false, bogus, and liable to be dismissed with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to a decree for mandatory injunction sought? OPP R.S.A.No. 527 of 2007 (O&M) 4 2. Whether the plaintiffs have no locus standi and cause of action to file the present suit? OPD 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Plaintiffs had filed a suit for mandatory injunction that the defendants be directed to remove the encroachment made by them in the street. Reliance was placed on report Ex.P1 of the Local Commissioner- PW-2 Dhoop Singh, Kanungo. As per the report of the Local Commissioner, defendants had encroached upon the street in question. In his cross-examination, Local Commissioner has deposed that the notice was given to the parties through the Chowkidar. Defendant Rai Singh was present at the time of demarcation but he had refused to sign the report. The report submitted by the Local Commissioner was signed by many persons. The demarcation report was made on 1.3.2001. However, the defendants failed to rebut the same. The defendants cannot be allowed to encroach upon the street, which is used by the public at large. Both the Courts below, after appreciating the evidence on record, have given a finding of fact that the defendants had made encroachment in the street in dispute. The said finding of fact cannot R.S.A.No. 527 of 2007 (O&M) 5 be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 22, 2009 anita