CM No.611-C of 2007 in RSA No.208 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.611-C of 2007 in RSA No.208 of 2007 Date of decision : 11-8-2009 Baldev Singh Thandi ....Appellant VERSUS Jarnail Singh and another ...Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. R.K.S. Brar, Advocate, for the applicant-appellant. RAJIVE BHALLA, J. CM No.611-C of 2007 Prayer in this application is for condonation of 18 days delay in filing of the appeal. Despite service, no one has put appearance on behalf of the respondents. Heard counsel for the appellant. For reason stated in the application, which is duly supported by an affidavit, the delay in filing of the appeal is condoned. RSA No.208 of 2007 The appellant challenges the judgments and decrees dated 24-5-2004 and 25-8-2006, passed by the Addl. Civil Judge (Senior Division), Nawanshahar and Addl. District Judge, Nawanshahar, dismissing his suit and his appeal. CM No.611-C of 2007 in RSA No.208 of 2007 -2- The plaintiff-appellant filed a suit for mandatory injunction directing the respondents to demolish the gate erected at point AB in a public street. In their written statement, the defendant-respondents denied the existence of any public street and pleaded that the gates have been fixed in their own property. After framing issues, parties were called upon to lead evidence. On the basis of the pleadings, the evidence adduced and the arguments addressed, the trial court held that the appellant had failed to prove existence of a public street or the fact that gate AB was installed in a public street. As a consequence, the suit was dismissed. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 25-8- 2006, the Addl. District Judge, Nawanshahar dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that a perusal of the site plan, produced by the respondents clearly suggest the existence of a street, leading up to the appellant’s house. It is further submitted that the Panchayat Secretary has deposed that the Gram Panchayat has bricklined the street. The courts below have discarded his deposition by holding that he has failed to refer to the khasra numbers or produce relevant record, relating to the brick lining of the street. It is argued that as the suit land is situated within abadi deh of the village and no separate khasra numbers are assigned to various parcels of land within abadi deh, the courts below have committed an error in discarding the statement of Panchayat Secretary. Counsel for CM No.611-C of 2007 in RSA No.208 of 2007 -3- the appellant submits that in view of the errors committed by the courts below, the following questions of law arise for consideration:- 1. Whether it is the duty of the defendants/respondents to prove the ownership over the land in dispute which is a public street before claiming that the gate has been installed by them on their own land? 2. Whether the findings of both the courts below with regard to decide the ownership of the land in dispute are not based upon any documentary evidence? 3. Whether the defendants/respondents have any right to install a gate while encroaching upon a public street and causing obstruction in the use of public street by the appellant for egress and ingress to his residential house and religious place? I have heard counsel for the appellant, perused the judgments and decrees passed by the courts below and the questions of law and express my inability to accept the arguments advanced by counsel for the appellant or to hold that the questions of law as framed by the appellant arise for consideration. The onus to establish the existence of a public street and the fact that the respondents have erected a gate to obstruct such a public street lay upon the appellant. As concurrently held by the courts below, the appellant has failed on both counts. The argument that the onus to CM No.611-C of 2007 in RSA No.208 of 2007 -4- establish their ownership lies upon the respondent disregards the fact that the initial onus to establish the existence of a public street, lay upon the appellant. The failure of the appellant to establish his primary stance, did not shift the onus to the respondents to establish their ownership. Even otherwise, land within the abadi deh is not assigned khasra numbers. Ownership of abadi land generally travels with possession. As regards the submission, that the Panchayat Secretary has established the existence of a public street, suffice is to state that, the deposition was rightly rejected, as he has failed to produce any evidence in the shape of a relevant record to prove the fact that the Panchayat had bricklined the street. As a result, it is held that the courts below have not committed any error whether in fact or in law as would give rise to the substantial question of laws framed by the counsel for the appellant. In view of what has been stated above, the appeal is dismissed with no order as to costs. (RAJIVE BHALLA) 11-08-2009 JUDGE manju