In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 1492 of 2009 Date of decision: April 15, 2009 Saran Singh .. Appellant Vs. Bhajan Singh .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sandeep Jain, Advocate for the petitioner. Mr. Vikas Bahl, Advocate for the respondent. A.N. Jindal, J There is a dispute regarding passage mark ABCD in the site plan Annexure P-1 between two brothers namely Saran Singh and Bhajan Singh. There is no dispute regarding two kanals passage approaching point “AB”, but the dispute is only regarding passage “ABCD” and the plaintiff had filed a suit for mandatory injunction directing the removal of the construction in the shape of wall “AB” and gate “CD” raised in the passage. According to the plaintiff-respondents, this is only passage to have an access to the main road, whereas, the defendant has specifically pleaded that though they are co-sharers in the entire land, yet he is in exclusive possession of the portion “ABCD” which is part of his house. The trial court vide its judgment dated 5.11.2005 had dismissed the suit, whereas, the appellate court while accepting the appeal had ordered the removal of the wall “AB” and the door “CD” from the site in dispute while holding that this part of the land marked “ABCD” was a passage. I have gone through the impugned judgment, perused the record and heard the learned counsel for parties. Besides the evidence of Gurcharan Singh Draftsman (PW2) and other witnesses examined by the plaintiff, both Palwinder Singh (DW1) and Rattan Singh (DW2) have admitted during cross examination about the existence of the passage to have access to the house of Bhajan Singh- respondent. Though learned counsel for the appellant has urged that the R.S.A. No. 1492 of 2009 -2- *** land is joint of the parties, therefore, the suit for mandatory injunction could not be set, yet it may be observed that the existence of the passage has been admitted by the defendant. The relevant translation of the extract from the statement of Palwinder Singh (DW1) is reproduced as under :- “A four 'karam' vide passage has been left to have access to the house of Bhajan Singh from the road, and which is common. We have not raised any construction upon the same. In case they have raised any construction, then they would be knowing about the same. The said passage is only up to the house of Bhajan Singh. There is no other passage. There is property of Bakshish Singh on the eastern side of said passage and which has a gate. The house of Amar Singh is on the western side of the said passage. Even the house of Saran Singh is on the western side of the passage and which is in khasra No.43.” Thus, Palwinder Singh (DW1) cannot wriggle out of the admission made by him that there is a passage and has been encroached upon by the defendant-appellant. The defendant-appellant has also accepted that according to the family partition, they had constructed houses. In such situation, the passage as claimed by the plaintiff has to be joint and he could use the same in the husband like manner and the defendant-appellant could not raise any construction in order to create obstacle in the use of the passage by the plaintiff. The learned counsel for the appellant has taken shelter of the judgment delivered in case Kehar Singh and others vs. Joginder Kaur @ Jagindro & others, 2004 (3) CCC 174 (P&H), wherein it was observed that when once the plaintiffs are held to be in exclusive possession of the some land though they are joint owners, then they can enjoy the same subject to the rights of the other co-sharers at the time of partition proceedings. At the same time, it is settled by now that the plaintiff being a co-sharer of the land, could enjoy the same in the husband like manner. R.S.A. No. 1492 of 2009 -3- *** Thus, while examining the case from any angle, the appellant has no case. Consequently, finding no merit in the appeal the same is hereby dismissed. April 15, 2009 (A.N. Jindal) deepak Judge