IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2202 of 2004(O&M) Date of Decision: 28.10.2009 Lachhman Dass .....Appellant Versus Ishwar Dass and anr. .....Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Sanjay Vashisth, Advocate for the appellant. Mr.Rajesh Arora, Advocate for the respondent No.1. * * * SABINA,J.(Oral) Plaintiff-Lachhman Dass filed suit for declaration with consequential relief of permanent injunction which was dismissed by the Civil Judge(Jr.Divn.)Gurgaon, vide judgment and decree dated 06.05.2002. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge, Gurgaon vide judgment and decree dated 02.01.2004. Hence, the present appeal by the plaintiff. The brief facts of the case, as noticed by the learned Additional District Judge in paras 2 to 4 of its judgment, reads as under: " Brief facts of the plaintiff's case are that he and defendant- respondent No.2 are owners in possession of a residential house marked by letters ABCHGFED shown in green and red colour of the site plan and is bearing No.EP-4 measuring 504 sq.yards, situated in Mohalla Pathanwara, Sohna. This house was allottted RSA No.2202 of 2004(O&M) ..2.. to Sh.Jetha Nand, uncle of the plaintiff and defendant No.2 by Rehabilitation Department and later on it was got registered in his name on 3.10.1961 in the office of Sub Registrar, Gurgaon. Said Jetha Nand had transferred the house in dispute in favour of plaintiff and defendant No.2 and it was partitioned between the plaintiff and defendant No.2 in the year 1984 by way of family settlement and since then the plaintiff is coming as owner in possession of the house marked by letters BCEN including red portion marked by letters EFGH whereas defendant No.2 is owner in possession of portion marked by letters ADEN of house No.EP- 4. It is alleged that red portion EFGH is part and parcel of the house of the plaintiff to the positive knowledge of defendant no.1. The plaintiff had got reconstructed his house after getting the site plan sanctioned from M.C.Sohna. The plaintiff had left uncovered and unbuilt the area shown in red colour in site plan. Defendant No.1 has no concern with the red portion shown in site plan. No door of his house opens towards the red portion. Defendant No.1 never used the said red portion. On the other hand, the plaintiff has been using this red portion which is part and parcel of his house. It is further alleged that the plaintiff has been coming owner in possession of the disputed land shown in red for the last more than 40 years through his uncle and himself continuously and without any objection of defendant No.1 or any other person and thus he has become owner of the same by adverse possession and the defendant No.1 has no right to interfere in the use of the plaintiff. RSA No.2202 of 2004(O&M) ..3.. 3. Defendant No.1 being a strong headed person has threatened to encroach upon the disputed red portion and to open door towards this portion. In case the defendant No.1 succeeds in doing so, the plaintiff will suffer irreparable loss and injury. The plaintiff asked defendant No.1 not to open any door towards the said portion of the plaintiff or to cause any obstruction in the use of the plaintiff or to raise construction thereon but he refused to accede to the request of the plaintiff. Hence this suit. 4. Notice of the suit was given to the defendant. Defendant No.1 appeared and filed written statement raising preliminary objections as to locus standi, casue of action, estoppel, jurisdiction, suppressing of material facts. On merits, it is denied that the plaintiff and defendant No.2 are owners in possessionof the property marked by letters ABCHGFED and red portion is part of EP-4. It is submitted that disputed red portion EFGH is not part of EP-4. Allotment of property to Jetha Nand and then transferred to the plaintiff and defendant No.2 is also denied. It is denied that defendant No.1 never used this disputed land as public joint street. It is submitted that a door, for moris and a window of the house of defendant-1 open towards the disputed land. An electric pole is also existing in this street. Denying all other averments, the defendant prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiff and defendant no.2 are owners in possession of house No.EP-4? OPP. RSA No.2202 of 2004(O&M) ..4.. 2. Whether there took place any family settlement in the year 1984? OPP. 3. Whether the land/disputed site is a part and parcel of land owned by plaintiff?OPP. 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the plaintiff is estopped from filingthe presentsuit by his own act and conduct?OPD. 6. Whether civil court has no jurisdiction as disputed property is evacuee property?OPD. 7. Whethr suit of plaintiff is barried by principle of rejudicata?OPD. 8. Relief." After hearing learned counsel for the parties, I am of the opinion that the instant apeal is devoid of any merit and is liable to be dismissed. Plaintiff had filed the suit for declaration and consequential relief of permanent injunction. The dispute in the present case relates to a passage shown in red colour in the site plan. The case of the plaintiff was that he was owner of the passage in dispute along with the house adjoining the passage. The case of the defendant, on the other hand, is that the pasage in dispute did not belong to the plaintiff and in fact was a public passage. Local Commissioner appointed in this case who submitted a report that the back door of the house of the plaintiff and two apertures opened towards the disputed property. Another aperture also opened in the disputed property and the window of the first floor aperture and ventilator of the defendant also opened towards the disputed property. The said possession was depicted in the site plan attached with the report. It has been observed by the learned Additional District Judge in the judgment that plaintiff whiile appearing as PW-1 had admitted in his cross-examination RSA No.2202 of 2004(O&M) ..5.. that one aperture of the defendant opened in the disputed portion. He further admitted that on the first floor of both their houses, apertures opened in the dipsuted portion. The disputed portion shown in red colour was being used as a passage by them. He further admitted that the window of house of Ishwar Dass opened in the passage. In a corner of the street, there was a street light fixed by the Muncipal Committee. Thus, from the statement of the plaintiff as well as the report of Local Commissioner, it was evident that the passage in dispute shown in red colour was being used as a street and the plaintiff was not owner of the said portion. Both the courts below after appreciating the evidence on record led by the parties have given a finding of fact that the passage, shown in red colour in the site plan produced by the plaintiff was a public passage, did not belong to the plaintiff. The said finding of fact cannot be interferred with by this court in appeal. No substantial question of law arises in this case. Accordingly, this appeal is dismissed. October 28,2009. (SABINA) Seema-II Judge