R.S.A.No. 564 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 564 of 2009 (O&M) Date of decision: 7.12. 2009 Prito and another ......Appellants Versus Dev Raj and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sandeep Jain, Advocate, for the appellants. Mr.Vikas Bahl, Advocate, for the respondents. **** SABINA, J. Plaintiff Prito and Bachna Ram filed Civil suit bearing No.216 of 2000 for permanent injunction, whereas, Dev Raj and Rattna Ram filed Civil suit bearing No. 730 of 1997 for mandatory injunction. Both the suit were consolidated and dismissed by the Civil Judge (Sr.Divn.), Nawanshahr vide judgment and decree dated 21.1.2004. In appeal, filed by Dev Raj, the said judgment and decree were set aside by the Additional District Judge, Nawanshahr R.S.A.No. 564 of 2009 (O&M) 2 vide judgment and decree dated 9.12.2008 and the suit filed by plaintiff Dev Raj for mandatory injunction was decreed with costs. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. The plaintiff (appellant) filed a suit for mandatory injunction for directing the defendants to remove the wall 'AB' constructed in front of the gate of the plaintiffs and to restore the Rasta of the plaintiffs' house for ingress and egress to the house, fully described in the head note of the plaint. It is averred that the plaintiffs are owner in possession of house in dispute and they installed a gate at point 'x' for ingress and egress and have been using the Rasta shown in violet colour in the site plan to approach his house. This Rasta is common passage and the gate is the only opening being used by the plaintiffs for ingress and egress. The defendants filed a suit against the plaintiffs titled as ' Prito Vs. Rattna Ram” wherein the application moved by the defendants was dismissed. The defendants got infuriated from the orders of the court dated 23.8.1995 vide which order of status quo was passed. The defendants constructed the wall 'AB' and blocked the passage of the house of the plaintiffs being used by them for their ingress R.S.A.No. 564 of 2009 (O&M) 3 and egress. The said construction of wall had completely blocked the passage and as such, there is no opening for the house of the plaintiffs. The plaintiffs asked the defendants to admit their claim and to remove the wall 'AB' constructed by them blocking the passage of the plaintiffs but the defendants refused to admit the claim of the plaintiffs. Hence, this suit. 3. Notice of the suit was given to the defendants upon which the defendants appeared and filed their written statement. 4. In the written statement filed by defendants, they took preliminary objections regarding maintainability of the suit, locus standi of the plaintiff; site plan produced by the plaintiffs being incorrect; On merits, while submitting counter site plan, the defendants submitted that the wall 'PQ' shown in the said site plan is common wall being used by the plaintiffs and defendant No.1 (Smt. Prito). The said wall was constructed by the plaintiffs and husband of defendant No.2 about 30 years back after replacing the old common mud wall. The common mud wall was constructed about 60 years back. The wall 'PQ' is of different height at different places as it was raised as per the requirement from point 'M' to point 'Q'. The height was kept low as none of the parties were interested to R.S.A.No. 564 of 2009 (O&M) 4 make the rooms at this place. The plaintiffs installed the gate by constructing the pillars at points 'M' and 'N'. The gate is installed inclined and it has opening towards the eastern side in the street. From points 'M' to 'Q' there is a common wall constructed by the plaintiffs and defendants about 30 years back. The wall was constructed on a common strip of land left by both the parties. All other averments made in the plaint were denied and accordingly, it was prayed that the suit of the plaintiff be dismissed with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether plaintiff is entitled to mandatory injunction prayed for? OPP 2. Whether the suit is not maintainable as framed? OPD 3. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Dev Raj, respondent No.1 filed a suit for mandatory injunction that the appellants should remove the wall as shown in the site plan at point 'AB' in red colour, which was approximately 5 feet in R.S.A.No. 564 of 2009 (O&M) 5 height. A perusal of the site plan Ex.P-1 (placed on record) reveals that the passage in front of the houses of the parties has been shown in purple colour. The house of the plaintiff has been shown in blue colour, whereas, the wall in dispute has been shown in red colour at point 'AB'. From Ex.P-1, it cannot be said that the wall 'AB' was common wall of the houses of the plaintiff and appellants. Rather it is evident that the house of the appellants does not extend beyond point 'A'. Rather the wall extends from the house of the appellants in the passage shown in purple colour. The same naturally obstructs the entry into the house of the plaintiff from the passage. Admittedly, the street in question has been brick paved by the gram panchayat and thus, it can be safely assumed that the passage in dispute is owned by the gram panchayat. Dev Raj had installed a gate in his house. Appellant Prito objected to the same but when Dev Raj did not close the gate, Prito raised the wall in front of the said gate and thereby obstructed the passage of Dev Raj to his house. The street in question is 10 feet wide up to the house of the appellants and thereafter, it is reduced to 5 feet. Drains have been constructed on both the sides of the street by the gram panchayat. In these circumstances, the learned Additional District Judge rightly held that the appellants had no right to obstruct the passage to the house of R.S.A.No. 564 of 2009 (O&M) 6 respondent No.1 by raising the wall in dispute. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 07, 2009 anita