RSA No. 189 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.189 of 2008 Decided on :06-05-2009 Harbans Lal and another ....Appellants VERSUS Vijay Kumar and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Sudhir Paruthi, Advocate for the appellants. Mr. S.K.Sandhir, Advocate for respondent no.1. MAHESH GROVER, J This is defendants' appeal directed against the judgment of the learned First Appellate Court dated 28.11.2007. The plaintiff-respondent no.1 filed a suit for mandatory and permanent injunction against the appellants on the basis of averments that he is owner of the plot measuring 2 kanals 8 marlas which has been described in the plaint on whose eastern side there is 10 feet wide street. It is pleaded that defendant no.3 purchased one plot measuring 45' x 45' vide sale deed dated 6.12.1983 and another plot of the same measurements vide sale deed dated 23.4.1985 towards the eastern side of the said street. In both these sale deeds a 10 feet wide street is shown towards western side of the plots purchased by defendant no.3. It is alleged that defendant no.4 obtained one plot measuring 45' x 35' towards the northern side of the aforesaid plots purchased by defendant no.3 vide gift deed dated 25.2.2000 and in this gift deed a street 10' wide is shown towards western side. It was RSA No. 189 of 2008 2 pleaded that defendants had no right to encroach upon any portion of the street or obstruct it but defendant no.3 obstructed the street and installed iron gates on both its sides and has closed the street. Similarly, defendant no.4 is also bent upon to enroach 10' x 35' area of the street and to raise construction on it and he pleaded that they may be restrained therefrom. Upon notice, the present appellants alongwith other persons who were arrayed as defendants filed written statement pleading therein that the plaintiff-respondent no.1 had purchased the property vide sale deed dated 28.1.1988 and towards the western side of the same there is 3 karms vide passage and from this it is clear that there is no street for the plaintiff towards eastern side. One Sukham Singh son of Sant Singh was owner of one plot measuring 55' x 180' and out of this plot four plots measuring 45'x45', 45'x45', 35'x45' and 55'x45' have been carved out and for these four plots he left a passage 10 feet wide towards western side. This passage was meant only for the above mentioned four plots and nobody else has any concern with it. It was pleaded that out of these four plots, two plots were purchased by defendant no.3 and construction was raised in passage measuring 10 feet wide and it was included in his plot about 15 years back. The third plot measuring 35' x 45' was ultimately purchased by Kuldip Singh and was gifted to defendant no.4 vide gift deed dated 25.2.2000. Defendant no.3 subsequently came to be known as Jog Anubhav Adhram Budhlada which is mentioned as defendant no.4. Fourth plot was sold to one Surjit Singh mason who has constructed his house. It was pleaded that adjoining to the plot of the plaintiff there is house of one Sodhi and towards their western side there is passage of 3 karm width. They are not having any passage towards eastern side and they have no right to use the same. RSA No. 189 of 2008 3 Both the parties went to trial on the following issues:- 1. Whether plaintiff is entitled to relief for mandatory injunction?OPP 2. Whether plaintiff is entitled to relief for permanent injunction?OPP 3. Whether plaintiff has no locus standi to file the present suit?OPD 4. Whether suit of the plaintiff is not maintainable in the present form?OPD 5. Whether the plaintiff has not come to the court with clear hands and suppressed the material facts?OPD 6. Relief. Learned Trial Court dismissed the suit of the plaintiff- respondent while in appeal before the learned First Appellate Court findings were reversed. Learned counsel for the appellants has contended that the plaintiff-respondent who had filed the suit has to prove his case in the affirmative. The sale deed in his favour does not reflect any passage as pleaded by him. It was pleaded that plaintiff-respondent has failed to establish his case. Therefore, the findings recorded by the learned First Appellate Court are erroneous and liable to be set aside. Learned counsel for the appellants has framed the following substantial questions of law :- 1. Whether in the facts and circumstances of the present case plaintiff/respondent No. 1 can rely upon the shortcomings of defendant/appellant and he is not required to prove his own RSA No. 189 of 2008 4 case by standing on his own legs ? 2. Whether in the facts and circumstances of the present case plaintiff/respondent No. 1 was not required to prove his case ? 3. Whether the admission of plaintiff is required to be proved by defendant ? 4. Whether the sale deed in favour of plaintiff wherein street is not mentioned on the eastern side of the property is not conclusive proof with regard to non existence of street towards eastern side ? 5. Whether the judgment and decree passed by Ld. Addl. Distt. Judge, Mansa is perverse ? On the other hand, learned counsel for the respondent contended that the appellant himself during the course of proceedings before the learned Trial Court admitted the passage. Even in the pleadings admission of 10 feet passage is there and no other evidence was required. Therefore, findings of the learned First Appellate Court are correct. I have heard learned counsel for the parties and have perused the impugned judgment. This Court is of the considered opinion that findings of the Court below are pure findings of fact regarding existence of the street which could be inferred from the testimony of DW1 Harbans Lal who has stated that houses of Surinder Singh Sodhi and Surjit Singh are opposite to each other and there is a street between the same. In cross examination he had admitted that the door of the house of Surinder Singh Sodhi opens to this street and house of Sodhi family is just adjoining to the plaintiff towards RSA No. 189 of 2008 5 western side of the street in dispute. If all these facts are admitted then it is clear admission of the existence of a street on the eastern side. It has also been noticed that statement had been recorded by said Harbans Lal on 28.3.2000 before the learned Trial Court prior to the framing of the issues that they will not encroach upon 10 feet wide street nor they will prevent the plaintiff from using the same. When clear cut admission have been made by the appellant himself regarding the street in existence, the findings cannot be termed to be ambiguous. In view of this the questions of law framed by the learned counsel for the appellant do not require to be answered as pure and simple questions of facts have been determined by the learned First Appellate Court. The appeal being devoid of any merit is hereby dismissed. May 06, 2009 (Mahesh Grover) rekha Judge