RSA No.4269 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4269 of 2008 (O&M) Date of Decision: 16.12.2011 Balbir Singh ...Appellant Vs. Joginder Pal ...Respondent BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL --- Present: Mr.Vikas Bahl, Advocate, for the appellant. Mr.Sanjay Gupta, Advocate, for the respondent. --- A.N.Jindal, J. Both the courts below decided the matter in favour of the plaintiff/respondent (herein referred as the plaintiff) and injunction was granted against the defendant/appellant (herein referred as the defendant) restraining the latter from blocking the street by raising any sort of construction at point A B and further from causing any damage to the drain in the common street with a view to block the flow of daily and rainy water in the suit property. Factual matrix of the case, as essential for disposal of the RSA No.4269 of 2008 2 appeal, is that the house of the plaintiff abuts the main street and house of defendant is on the rear side of the house of the plaintiff. Both the parties are relatives. At the time of mutual arrangement regarding allocation of the houses, street marked with letters ABCD shown in red colour on the eastern side of the house of the plaintiff was left by the parties for ingress and egress of the defendant in order to approach the main street situated on the northern side of the house of the plaintiff and defendant. However, since the passage was approaching the house of the defendant alone, therefore, on being threatened to stop the ingress and egress of the plaintiff through the said street and creation of obstruction in the flow of water through the drain in the street, the present suit was filed. Upon notice, defendant appeared and contested the cause by filing written statement, wherein, besides taking preliminary objections, he averred that he is the owner in possession of the house shown in blue colour along with the site shown in the red colour in the site plan of the plaintiff. Plaintiff has got no concern with the property shown in blue and red colour. This portion of the street was left by the ancestors for the sole use of the defendant as he was allotted rear portion of the joint property, whereas yellow portion was retained by them which is under the occupation of the plaintiff. The defendant has fixed an iron gate at point AB for the last 15 years and using the same for his personal use. He has also averred that the portion shown as red in the site plan is part and parcel of the house of the defendant and the plaintiff has no concern. The plaintiff had RSA No.4269 of 2008 3 filed an application before the Administrative Authorities in November, 2005 on which an inquiry was conducted by Block Development and Panchayat Officer, Banga, who also reported that the portion shown in red colour is part and parcel of the house of the defendant and is exclusively owned by him being the occupant of rear portion and the plaintiff has no right to discharge the water of his house into the portion shown in red colour. The plaintiff is guilty of suppressing true facts and as such he is not entitled to discretionary relief of injunction. The defendant also denied about the existence of any drain, door, window and opening of the plaintiff into the private passage of the defendant. While admitting the existence of door, it was submitted that the door was affixed by him for his safety and security but it was forcibly removed by the plaintiff. It was also alleged that daily water of the plaintiff as well as defendant's house stagnates in the passage in question on account of damaging the drain by the plaintiff as such there is apprehension of spreading of epidemics. The following issues emanated from the pleadings of the parties:- 1. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD RSA No.4269 of 2008 4 4. Whether the site plan is incorrect? OPD 5. Relief. During his evidence, the plaintiff appeared as PW 1 and examined Gurcharan Singh, Draftsman (PW 2). To the contrary the defendant examined Gurcharan Singh (DW 1) and he himself appeared as DW 2. On scrutiny, the trial court while deciding all the issues in favour of the plaintiff and against the defendant, decreed the suit of the plaintiff and restrained the defendant from blocking the street and also from causing any damage or obstructing the flow of daily and rainy water passing through the drain in the street. Having heard the rival contentions, no merit is found in the contentions raised by the counsel for the defendant. There is no dispute with the fact that both the parties, earlier, were co-sharers in the suit property and the ancestors of the parties by way of mutual agreement allocated the house situated at the front side abutting the street to themselves and on the rear side to the defendant. House presently occupied by the plaintiff was previously occupied by their ancestors. There is no denying a fact that the passage ABCD which is to the width 3'9” was left on the eastern side for the ingress and egress of the defendant and it was treated as passage. Claim of the defendant does not stand substantiated to the effect that it was for his exclusive use and the same could not be used by the plaintiff. Undisputedly, the passage as alleged is passing by the RSA No.4269 of 2008 5 side of the house of the plaintiff. It was carved out of the joint land and the size of the site in dispute indicates that it was left as street and it is street. In the absence of any such terms and conditions that the passage was left by ancestors of the parties for exclusive use of the defendant. The plaintiff has certainly a right to use the site in dispute and it would be termed as common land (passage). PW 1 has reiterated the plea set up by him while claiming his right to use the street and to allow the dirty water of his house to pass through drain in the said passage, whereas the defendant has failed to rebut this evidence. The defendant while appearing as DW 2 admits the fact that portion ABCD is a street which adjoins the house of the plaintiff. He also admits that the spouts of the house of the plaintiff fall in the street in question. This fact as admitted by Balbir Singh defendant himself goes a long way to prove that the site in dispute is street and the same is used by both the parties. Had this street been for the sole use of the defendant Balbir Singh, then he would not have allowed the plaintiff to keep spouts towards his side. Balbir Singh defendant during his cross-examination has also categorically admitted that both the parties had inherited the property from their fore-fathers. As regards the plea that the defendant has fixed the door at point AB which was removed by the plaintiff. It may be observed that Gurcharan Singh DW 1 during his cross-examination has admitted that there is no door at the said points. RSA No.4269 of 2008 6 From the entire evidence, it stands clinched that the defendant wanted to encroach upon the street by depriving the plaintiff of the use of the same and wanted to stop the flow of the water of the plaintiff though the said street. Both the courts below have returned concurrent findings of fact that street shown in red colour in the site plan Ex.P.1 is for the use of both the parties and is not the exclusive ownership of the defendant. No substantial question of law arises for determination by this court in this appeal. Dismissed. (A.N.Jindal) 16.12.2011 Judge rp