R.S.A.No. 3352 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3352 of 2009 (O&M) Date of decision: 31.7.2009 Joginder Singh ......Appellant Versus Gurdev Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Malkeet Singh, Advocate, for the appellant. Mr.U.K.Agnihotri, Advocate, for respondents No. 1 and 2. **** SABINA, J. Plaintiffs Dalip Singh, Joginder Singh, Kuljit Singh and Manjit Singh filed a suit for permanent injunction against defendants Gurdev Singh and Ajit Singh. The suit of the plaintiffs was dismissed by the Additional Civil Judge (Sr.Divn.) Phillaur vide judgment and decree dated 3.5.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Jalandhar vide judgment and decree dated 23.2.2007. Hence, the present appeal by plaintiff No.2 Joginder Singh. Brief facts of the case, as noticed by the trial Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The property in dispute shown as red marked R.S.A.No. 3352 of 2009 (O&M) 2 ABCD in the site plan attached is owned and possessed by the plaintiffs exclusively along with Jaswant Kaur, whose house is situated on northern side. The plaintiffs have left this property in dispute as private street only for their exclusive use and for Jaswant Kaur, mother of plaintiff No.2. The property in dispute as shown yellow and blue colour is ancestral property of the plaintiffs. The defendants have got no right or concern with the property in dispute in any manner, which is the exclusive ownership in possession of the plaintiffs and none else has right in it. Defendant No.2 has got his property on the Eastern side of the suit property, while the defendant No.1 has his property away from the suit property, but as both the defendants are real brothers, they have joined hands with each other and they are raising threat to the plaintiffs. There never remained any door or ventilator of defendant No.2 towards the property in dispute. Now the defendants are threatening to open windows, ventilators, door etc. towards the property in dispute, as shown red in colour in the site plan. As such on accrual of cause of action, the present suit has been filed by the plaintiffs. 3. On notice, defendant No.1 contested the suit by way of filing written statement raising preliminary objections that the suit is not maintainable in the present R.S.A.No. 3352 of 2009 (O&M) 3 form; plaintiffs are not come to the court with clean hands; site plan produced by plaintiffs is incorrect; plaintiffs have no locus standi to file the present suit and that the plaintiffs are barred by their own acts and conduct. On merits, as well as in the detailed preliminary objection-A of the written statement, it is averred that the street in dispute is not private street, as alleged by the plaintiffs. The plaintiffs are not owner of the street in dispute and have not produced any document regarding the ownership of the street in dispute. The real facts are that the street in dispute is a public street and is owned and possessed by the Gram Panchayat for ingress and outgress. The Gram Panchayat of village Rajgomal has brick paved the street as well as the drain. The property of defendants is towards Eastern side of the street in dispute and ventilators of the house of defendant No.2 are also opening towards the street in dispute. The street in dispute also leads to the property of the answering defendant and the answering defendant is using the street in question for coming and going from their property. 10 years ago, Jaswant Kaur also tried to encroach upon the street in dispute and the Gram Panchayat has taken action against Jaswant Kaur and also passed the resolution against Jaswant Kaur, as the R.S.A.No. 3352 of 2009 (O&M) 4 Western side of the house of the defendant, there is a street, which has been paved by the Gram Panchayat and the drain has also been made, but Jaswant Kaur illegally and forcibly installed the gate in the street in dispute with malafide intention. The plaintiffs have not intentionally shown the street towards the Eastern side, whereas, the defendant has produced on record the correct site plan. The plaintiffs with malafide intention, wanted to grab the street in question by filing the present suit, when the plaintiffs have no right, title or concern with the street in dispute. When the plaintiffs themselves opened the doors, ventilators, windows etc. towards the street in dispute, then the answering defendant has got right to open the door, window etc. towards the street in dispute, as the street is a public street. Therefore, the suit of the plaintiffs deserves dismissal.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners in possession of the suit property? OPP 2. Whether the plaintiffs are entitled for injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD R.S.A.No. 3352 of 2009 (O&M) 5 4. Relief. ” After hearing learned counsel for the parties, I am of the opinion that no ground for interference is made out. The plaintiffs had filed a suit seeking permanent injunction restraining the defendants from affixing/installing any door, window or ventilator towards the passage ABCD (as shown in the site plan Ex.P-1) in dispute. However, the findings of the Courts below are that the said passage ABCD in dispute is not a private passage. In fact, the Gram Panchayat had brick paved the street and constructed drains. The said fact was stated by Jagjit Kaur (DW- 3), Member Panchayat, while appearing in the witness box. Moreover, the plaintiffs had failed to establish that they were owners of the passage in dispute. A perusal of the site plans Ex.P-1 and DW2/B reveals that the passage in dispute exists between the houses of the parties and there is no gate at point CD in the site plan, which opens in the main road to substantiate the plea of the plaintiffs that the passage in dispute was exclusively used by the plaintiffs alone and not by anybody else. The said findings of fact cannot be interfered with by this Court in this appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 31, 2009 anita