Regular Second Appeal No.2355 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2355 of 2007 Date of decision: 17.07.2009 1. Arun, 2. Ajay Kumar sons of Bal Krishan son of Ram Chand , r/o Kalsan Market, Mohalla Durga Mandir, Shahabad Markanda District Kurukshetra. ..... Appellants. Versus Nalin Kumar son of Sh. Raghbir Chand, r/o Kalsan Market, Mohalla Durga Mandir, Shahabad Markanda, District Kurukshetra. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. Sanjiv Gupta, Advocate for the appellants. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 27.11.2006, rendered by the Court of Civil Judge (Senior Regular Second Appeal No.2355 of 2007 2 Division), Kurukshetra, vide which it decreed the suit of the plaintiff, for permanent injunction and the judgment and decree dated 28.04.2007,rendered by the Court of Additional District Judge, Kurukshetra, vide which it dismissed the appeal against the judgment and decree of the trial Court. 2. According to the plaintiff, (now respondent), the suit property, shown as ABCD in the site plan was common dahlij of the parties to the suit. The portion shown, in red colour, was common Sehan, rasta and stairs of the parties and father of defendants(now appellants). The plaintiff had purchased the property, situated towards northern side of dahlij, from the father of defendants, vide registered sale deed no.1276 dated 02.07.1968 including all rights to keep door in the said common Dahlij, as also for ingress and outgress through the same. It was further stated that since then, the plaintiff has been in peaceful and continuous use of said dahlij, but the defendants are bent upon demolishing the same forcibly and illegally, as they wanted to close the door of the plaintiff. It was further stated that the defendants were asked, many a time, not to do Regular Second Appeal No.2355 of 2007 3 so, but to no avail. On their final refusal to desist from their illegal designs, left with no alternative, a suit for permanent injunction, was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing their joint written statement. They pleaded therein that the plaintiff had no locus standi and cause of action to file the present suit. It was further pleaded that the plaintiff was estopped from filing the suit by his own act and conduct. It was stated that the plaintiff had no concern with the portion marked 'ABCD', as also had got no right in the other portion, situated towards the southern side of wall 'BC'. It was further stated that the said portion, by way of family partition, was exclusively owned and possessed by Smt. Champa Devi. It was further stated that she executed a will Dated 19.06.1973 bequeathing the property, to the plaintiff, and the defendants. The said Will was acted upon by the parties, to the suit. The defendants were having every right to use the said portion, situated towards southern wall 'BC' including the portion shown in the red colour in Regular Second Appeal No.2355 of 2007 4 the site plan. It was further stated that the door, which was in existence in the wall 'BC' as well as the portion marked 'ABCD”, was not used by the plaintiff, for outgress and ingress as the same was closed by him (plaintiff ) by constructing the pucca fitting, adjoining the wall 'BC'. It was further stated that the defendants were going to re-construct their house, which was in dilapidated condition, but the plaintiff filed the suit. The remaining averments were denied. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court on 30.05.2000:- “1- Whether the plaintiff is entitled for permanent injunction as prayed for ?OPP 2- Whether plaintiff has no locus standi to file and maintain the present suit ?OPD 3- Whether the plaintiff is estopped by his own act and conduct to file and maintain the present suit ?OPD 4- Whether the plaintiff has concealed the true and material facts from the Court ? OPD 5- Whether plaintiff has no cause of action Regular Second Appeal No.2355 of 2007 5 to file and maintain the present suit ?OPD 6- Relief.” 5. The parties led evidence in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit of the plaintiff. 6. Feeling aggrieved, against the judgment and decree dated 27.11.2006, passed by the trial Court, the appellants filed an appeal before the Appellate Court at Kurukshetra, which vide its judgment and decree dated 28.04.2007 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellants. 8. I have heard the Counsel for the appellants, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellants submitted that the Courts below, fell into an error in coming to the conclusion, that the dahlij was for common use of the parties. He further submitted that, on the other hand, as per the Will Regular Second Appeal No.2355 of 2007 6 dated 19.06.1973, which was executed by Champa Devi, the defendants became the exclusive owners of the said dahlij. He further submitted that the sale deed dated 02.07.1968, which was executed in favour of the plaintiff, did not relate to the property, in dispute. He further submitted that, on the other hand, the Will related to the property in dispute. He further submitted that since the dahlij was the exclusive ownership of the defendants, no permanent injunction could be granted to the plaintiff as they had no concern, in the property in dispute. He further submitted that, in the alternative, the appellants could only be restrained from interference, except in accordance with the provisions of law, but no such, order was passed. He further submitted that the judgments and decrees, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. Both the Courts below, on due appreciation of the sale deed Regular Second Appeal No.2355 of 2007 7 dated 02.07.1968, came to the conclusion, that the plaintiff purchased the property, situated towards northern side of dahlij from the father of the defendants, including all rights to keep door in the said common dahlij and for outgress as well as ingress through the same. It is settled principle of law, that this Court, in Regular Second Appeal, cannot interfere into the findings of fact, recorded by the Courts below on a particular issue. This Court can only interfere, in the judgments and decrees of the Courts below, if it comes to the conclusion that substantial questions of law, arise in the said appeal, and the Courts below, did not record correct findings thereon. The concurrent findings of fact recorded by the Courts below, that the plaintiff was given a right to use the common dahlij for the purpose of opening the door and for ingress and outgress through the same, vide sale deed, referred to above; that the defendants, could not interfere into the peaceful user of that common dahlij, by the plaintiff; and that the plaintiff (now respondent) was entitled to the injunction, prayed for, being based on the correct appreciation of evidence and law on the point, do Regular Second Appeal No.2355 of 2007 8 not suffer from any illegality or perversity, and, as such, warrant no interference. The judgments and decrees, of the Courts below, are liable to be upheld, but the defendants (appellants) shall not be debarred from proceeding in accordance with law. The submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. In view of the above, finding no merit in the appeal, the same stands dismissed with no order as to costs. It is, however, made clear that the judgments and decrees of the Courts below, shall not debar the defendants (appellants) from proceeding, in accordance with law. ( Sham Sunder ) July 17, 2009 Judge dinesh