RSA No.1983 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1983 of 2010(O & M) Date of Decision:21.09.2010 Darshan Singh .....appellant Versus Pritam Singh @ Preet Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Manish Bansal, Advocate for the appellant **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgement and decree of the Lower Appellate Court, whereby suit of the plaintiff-respondent has been decreed and the appellant has been restrained from interfering in possession of the plaintiff over the suit property and also from demolishing the boundary walls, rooms, latrine and other property of the plaintiff, except in due course of law. As per the averments pleaded in the suit, respondent was owner in possession of suit land in which he had got constructed his residential house near Harijan Colony and was residing along with his family. The appellant threatened to construct a passage by dismantling the portion of boundary wall, room, latrine belonging to the appellant, forcibly and illegally. However, his attempt was foiled but the appellant was bent RSA No.1983 of 2010(O & M) 2 upon to demolish the same. Hence the suit. In pursuance of the notice, defendant-appellant appeared and filed written statement taking legal objections. It was further alleged that plaintiff-respondent concealed material facts from the knowledge of the court as in view of the demarcation report dated 02.06.2004 and panchayati compromise dated 07.06.2004 which was duly signed by the parties, the suit was liable to be dismissed. It was further alleged that plaintiff-respondent concealed his real name i.e.Malkiat Singh and has no cause of action to file the present suit. On merits, the appellant alleged that plaintiff was not the owner of the suit land, rather he wanted to construct a pond by encroaching upon the passage of the appellant, for which he had no right. It was further alleged that appellant got conducted the demarcation of the suit land who reported that Malkiat Singh s/o Jora Singh had encroached upon the land which is clear from Naksha Tavafat dated 30.05.2004 and further in the presence of the panchayat, a compromise dated 07.06.2004 was affected between the parties. The appellant appended his thumb impression as Malkiat Singh in the presence of witnesses. The other material averments of the suit were denied and dismissal of the suit was prayed for. Plaintiff-respondent filed replication reiterating the averments of plaint and further denying any demarcation report or compromise and also reiterating that his name is in fact Pritam Singh @ Preet Singh. From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is in possession of suit property as prayed for?OPP 2. Whether the plaintiff has concealed the material facts from the Court?OPD RSA No.1983 of 2010(O & M) 3 3. Whether the plaintiff is entitled to the relief of injunction as prayed for?OPP 4. Relief. After hearing learned counsel for the parties, the trial Court decided issues No.1 to 3 against the plaintiff-respondent and resultantly, the suit was dismissed. Feeling aggrieved from the aforesaid judgement and decree of the trial Court, plaintiff-respondent filed an appeal which was accepted by the Lower Appellate Court vide impugned judgement and decree dated 15.10.2009. Still not satisfied, the defendant has approached this Court by filing the instant appeal submitting that the following substantial questions of law arise in this appeal: 1. Whether the respondent/plaintiff entitled for discretionary relief of injunction who has not approached to the Court with clean hands and concealed the material facts of the case? 2. Whether the respondent/plaintiff entitled for injunction on the passage which is public property? 3. Whether the learned Lower Appellate Court misread and misinterpreted the evidence brought on record by the appellant? 4. Whether the judgement and decree passed by the Lower Appellate Court is fair, just and legal and sustainable in the eyes of law? 5. Whether the judgement and decree passed by the trial Court should be upheld? In support of this appeal, learned counsel for the appellant has vehemently argued that the Lower Appellate Court has failed to RSA No.1983 of 2010(O & M) 4 consider that plaintiff-respondent had not approached the Court with clean hands and even concealed his real name Malkiat Singh and filed the suit in the name of Pritam Singh @ Preet Singh because he put his thumb Impression as Malkiat Singh on compromise Ex.D-4 and Ex.D-5 executed between the parties in the presence of panchayat, wherein he admitted the existence of disputed passage, and thus he was not entitled to any relief. Learned counsel for the appellant further argued that the Lower Appellate Court has misread and misinterpreted the evidence on record and has wrongly ignored the demarcation report which was never challenged by the plaintiff-respondent and, thus, the findings of the Lower Appellate Court which are perverse, are liable to be set aside. I have heard learned counsel for the appellant and perused the impugned judgement and decree. The Lower Appellate Court on re-appraisal of evidence found that there was ample evidence on record such as Ex.P-1, Ex.P-11, Ex.P-12, Ex.P-13, from which it reveals that the name of plaintiff as Pritam Singh s/o Jora Singh is recorded along with other vendees. It may also be noticed, at this stage, that it is the appellant who had taken the plea that plaintiff-respondent had not come to the court with his hands clean and, therefore, it was incumbent upon the appellant to prove the aforesaid plea taken by him. However, there is not an iota of evidence placed on record by the appellant to prove the aforesaid assertion. It is relevant to point out that the plea of appellant regarding panchayati compromise was also found to be false as the aforesaid panchayati agreement does not pertain to the suit property. In spite of the fact that appellant had also taken the plea that plaintiff-respondent had encroached upon a passage, he never moved any application for demarcation before the revenue authorities nor he had taken any proceedings regarding alleged encroachment by the plaintiff- respondent. RSA No.1983 of 2010(O & M) 5 Thus, no interference is warranted in the findings of fact recorded by the Lower Appellate Court. No substantial question of law arises. Dismissed in limine. (RAKESH KUMAR GARG) JUDGE 21.09.2010 neenu