Regular Second Appeal No. 4256 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4256 of 2008 Date of Order: 03.07.2009. Sain Dass ....Appellant Versus Khazan Chand ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Ms. Ravinder Kaur Manaise,Advocate for the appellant. RAJIVE BHALLA, J (Oral). The appellant challenges the judgment and decree dated 02.06.2008, passed by the Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, allowing the appeal filed by the respondent, reversing the judgment and decree dated 31.10.2000, passed by the Civil Judge (Junior Division), Batala and, therefore, decreeing the suit filed by the respondent. The plaintiff-respondent herein filed a suit for permanent injunction to restrain the appellant-defendant from obstructing the respondent's access to the common passage ABCDEFGH. Upon notice, the appellant filed a written statement denying that the suit property is a passage. It was asserted that their fathers had purchased separate plots from the Rehabilitation Department. The suit land is a part of the plot purchased by the appellant's father. The appellant's father Sunder Dass filed a suit in the year 1976, which was decreed by the Sub Judge IInd Class, Batala, holding that the entire plot, including the suit land belongs to Sunder Dass. The instant suit is, therefore, barred by resjudicata and should therefore be dismissed. Regular Second Appeal No. 4256 of 2008 -2- On the basis of the pleadings, the trial court framed the following issues and called upon the parties to lead evidence. “1. Whether the plaintiff is entitled to injunction as prayed for?OPP 2. Whether the suit is not properly valued for the purpose of court fees and jurisdiction?OPD 3. Whether the plaintiff has no locus standi to file the present suit?OPD 3-A. Whether the present suit is barred by the provision of resjudicata?OPD 3-B Whether the plaintiff has not come to the court with clean hands?OPD 4. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court held that in view of the documents Ex.D1 to D6 and the litigation that concluded in the year 1976, the suit land was not a passage. Consequently the suit was dismissed. Aggrieved by the aforementioned judgment and decree, the respondent filed an appeal. The Additional District Judge, Fast Track Court, Gurdaspur, accepted the appeal, set aside the judgment and decree passed by the trial court and decreed the suit. The first appellate court held that the suit property ABCDEFGH is the only passage that links the respondent's house to the main street. It was further held that as the judgment in the earlier suit did not relate to the right to a passage, it would not operate as resjudicata. Counsel for the appellant submits that the impugned judgment is illegal and void and the following substantial questions of law arise for consideration. “a) Whether an injunction can be issued restraining the Regular Second Appeal No. 4256 of 2008 -3- defendant/appellant from raising any construction over the suit property, owned and possessed by defendant/appellant? b) Whether the suit of the respondent is barred by the principle of resjudicata? It is submitted that as the suit land is owned by the appellant, the first appellate court had no jurisdiction to grant an injunction. It is also submitted that as the suit land was subject matter of an earlier suit decided in favour of the appellant's father, the instant suit is barred by resdudicata and, therefore, the first appellate court committed an error in accepting the appeal and decreeing the suit filed by the respondent. I have heard counsel for the appellant, perused the impugned judgment, considered the questions of law and express my inability to accede to the arguments addressed by counsel for the appellant. The dispute in the present case relates to access to the respondents house by mean of a passage ABCDEFGH. The trial court held that as the appellant was owner of the suit property, the respondent could not claim any right of passage. The first appellate court reversed this finding by holding that the question was one of acccess to the respondent's house and not of ownership. It would be necessary to mention here that at no stage of the proceeding has the respondent claimed title to the suit property. The sole claim, put forth is that the suit property ABCDEFGH is a passage and in case the appellant raises construction over this property, access to the respondents' property, would be blocked. The first appellate court, therefore, rightly held that even though the land was owned by the appellant the suit was not barred by resjudicata as the dispute relates to passage and not to its ownership. As regards the argument that an owner cannot be restrained from raising construction over his own property, suffice is to say that where the question is of the easement of necessity, Regular Second Appeal No. 4256 of 2008 -4- the question of ownership is irrelevant. In view of what has been stated hereinabove, the substantial questions of law framed by counsel for the appellant do not arise for consideration. Consequently the appeal is dismissed. July 03, 2009 (RAJIVE BHALLA) nt JUDGE