RSA No.4308 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4308 of 2010(O&M) Date of Decision: December 13, 2011 Krishan Lal .....Appellant v. Gurmail Singh and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Deepak Sharma, Advocate for the appellants. ...... Ram Chand Gupta, J.(Oral) C.M.No.13007 of 2010 In view of the facts mentioned in the application, delay of 132 days in re-filing the appeal is condoned. Application stands disposed of accordingly. C.M.No.13008 of 2010 Application is allowed subject to all just exceptions. RSA No.4308 of 2010 The present regular second appeal has been filed against judgment and decree dated 16.9.2009 passed by learned Additional District Judge, Ambala, dismissing appeal filed by present appellant-plaintiff against judgment and decree dated 15.5.2009 passed by learned Additional Civil Judge (Senior Division) Ambala City, dismissing suit filed by present appellant-plaintiff. I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by RSA No.4308 of 2010(O&M) -2- learned Courts below. Briefly stated appellant-plaintiff filed a suit for decree for mandatory injunction directing respondents-defendants to close opening made by them at point `X' in the back wall CD towards and in the courtyard of the house of plaintiff with a consequential relief of permanent injunction restraining respondents-defendants from constructing any door or gate in the said opening. It has also been pleaded that there used to exist three windows in the back room of the house of the defendants towards his courtyard. On notice being issued, respondents-defendants admitted that their house situated towards southern side of the house of the plaintiff. However, plea has been taken that there exists 12 ft wide pacca street in between houses of plaintiff and bara of Banarasi and that plaintiff has illegally and forcibly constructed latrine and bathroom in the street, for which an application was moved before Gram Panchayat and BDPO requesting to remove the encroachment and hence, the present suit was filed just to pressurise them to withdraw the application. On appreciation of evidence adduced by the parties, learned trial Court dismissed the suit filed by present appellant. Appeal filed by present appellant was also dismissed by learned Additional District Judge, Ambala. It has been vehemently contended by learned counsel for the appellant-plaintiff that the property situated towards southern side of the house of the defendants is part of the courtyard of the house of present appellant-plaintiff and the same is not a public street and however, both the courts below had misread the evidence and committed illegality in coming RSA No.4308 of 2010(O&M) -3- to the conclusion that the same is a part of public street. However, there is no force in the argument of learned counsel for the appellant-plaintiff. Law is well settled that appellant-plaintiff is to stand on its own legs. He has taken specific plea that the properly situated towards southern side of the house of the defendants is part of his courtyard and is not a public street. However, he has admitted that already three windows are in existence in the wall of the house of respondents-defendants towards the said premises, which shows that the same is a street. He has also admitted that an opening was also made in the wall of respondents- defendants and they wanted to fix a door in the same. PW1 Sarpanch of the village was examined by present appellant-plaintiff, who has also admitted existence of windows and door of house of respondents in the street. Evidence has come on record that electric pole was also affixed in the said premises by the Electricity Department. Resolutions were also passed by Gram Panchayat, i.e., Ex.D2 and D3, which were sent to BDPO complaining encroachment of common land of the village by the appellant. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 13.12.2011 ( Ram Chand Gupta ) meenu Judge RSA No.4308 of 2010(O&M) -4-