IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.926 of 2010(O&M) Date of Decision: 02.03.2010 Dinesh Kaushik and another Appellants Versus Bhushan Kuamr and another Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Ms.Anu Pal, Advocate for the appellants ….. Jasbir Singh, J.(Oral) C.M. No.2640-C of 2010 This is an application under Section 149 CPC for making good the deficiency in payment of Court Fee. In view of reasons mentioned in this application, which is accompanied by an affidavit, it is allowed as prayed for. C.M. No.2642-C of 2010 In view of reasons mentioned in this application, it is allowed and delay of 48 days in re-filing the appeal stands condoned. Regular Second Appeal No.926 of 2010 Respondent No.1 filed a suit for permanent injunction, with a prayer that the appellants-defendants be restrained from encroaching upon gair mumkin rasta shown with red colour in the site plan mark-A annexed Regular Second Appeal No.926 of 2010(O&M) with the paint. After notice written statement was filed by the appellants wherein existence of the passage was denied. However it was said that passage is in existence from another side of the land owned by them. The trial Court gone into this aspect of the matter and after noticing evidence, led by both the parties, has observed as under:- “ After hearing the parties to the suit, I am of the view that so far as citation relied by the counsel for the plaintiffs are concerned the same are not disputed qua the preposition laid down it them. The simple question herein is that plaintiff claims that on the eastern side of Killa No.10/2/2 is rasta which he claim to have been illegally encroached by raising construction by the defendants whereas defendants denies it and claim that the same has no sanctity of law and was left by the co-owners of the Khasra No.300 by mutual consent. However, I find force in the submissions of learned counsel for the plaintiff because from Akshizra prepared by the Patwari copy of which is Ex.P3 on the file, rasta on the eastern side of khasra No.10/2/2 has been shown, the same is true copy of the record with endorsement made by the Patwari. Even from the stand of the defendant rasta is admitted to be existing and that is why his stand is that instead of this rasta he has left another rasta shown in Ex.D1 in green colour but I am of the view that since rasta claimed by the plaintiff find mention in the revenue record i.e. Akshizra. Nothing has been placed on the file by the defendant to show that Ex.P3 is a document having no sanctity of law or is false or fabricated. Therefore, the contention of the plaintiff that some other rasta was left with consent is also belied from the fact that had their been no rasta left during consolidation, then it would never have find mentioned in the revenue record, rather the same would have been shown as killa number being ownership of the defendants. Learned counsel for the defendants also argued that in Ex.D1 the rasta the has been shown to be left from their land. However, this argument does not have much impact because this is self serving statement of the venders and the document 2 Regular Second Appeal No.926 of 2010(O&M) is dated 7.10.2003 prepared much after the institution of the suit which was instituted in the year 2001, therefore, much weightage to this arguments cannot be given. It has been admitted by the son of vender to defendant No.1 that land among the co-sharers has not been partitioned. The rasta was existing but was never used by them. When existence of rasta which is claimed by the plaintiff in the suit is proved from the revenue record and the statements of defendants witnesses then the contention of learned counsel for the defendants that it was their private rasta cannot be endorsed. Son of the vender has further admitted that no partitioned of the co-sharer have taken place which include plaintiff also. Therefore, I have no hesitation in holding that plaintiff is co-owners with the defendant and the rasta abutting killa No.10/2/2 exists which turns to the right which is encroached by the defendant by constructing a boundary wall for his school for which the defendants are liable to be directed to restore the property to its original use i.e. gair mumkin rasta of 13 karams x 3/2 karams by removal of construction and further not to raise any sort of construction over it. Hence, both these issues are decided in favour of the plaintiff and against the defendants.” Suit filed by respondent No.1 was decreed. Appellants and the proforma respondents went in appeal which was dismissed. Hence this regular second appeal. Counsel for the appellants has failed to show that how the finding given by both the Courts below is contrary to the evidence on record. While decreeing suit filed by respondent No.1 and in dismissing appeal of the appellants, the Courts below have placed reliance on Aks shazra, in which existence of the passage, as claimed by respondent No.1 was shown. It has also come on record that even witnesses produced by the appellants have admitted existence of the passage. No law point has been 3 Regular Second Appeal No.926 of 2010(O&M) made out to interfere in the concurrent finding of fact arrived at by both the Courts below. Dismissed. 02.03.2010 (Jasbir Singh) gk Judge 4