R.S.A.No. 1617 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1617 of 2008 (O&M) Date of decision: 12.10.2009 Raj Kumar ......Appellant Versus Ram Bhagat and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.K.Gupta, Advocate, for the appellant. Mr.U.K.,Agnihotri, Advocate, for the respondents. **** SABINA, J. Plaintiff – Raj Kumar filed a suit for permanent injunction, which was dismissed by the Civil Judge (Sr.Divn.), Jind vide judgment and decree dated 9.5.2007. In appeal, the said judgment and decree were upheld by the District Judge, Jind vide judgment and decree dated 15.5.2008. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1617 of 2008 (O&M) 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “ Plaintiff is owner in possession of a plot shown in the site plan attached with the plaint. He has constructed a boundary wall of his plot and is using this plot for tethering cattle and for preparing dung cakes etc. It is further the case of the plaintiff that ingress and outgress of his plot is through a street shown in red colour in the site plan attached with the plaint and there is no other passage for his plot which he is using for the last more than 20 years. Claiming that the defendants are threatening to cause obstruction in the passage of the plaintiff by closing the Gali and causing damage to the boundary wall of the plaintiff the suit was filed by the plaintiff for restraining the defendants pleading that despite several requests made to the defendants, they have not seen reason. 3. This suit was contested tooth and nail. Controverting the allegations of the plaintiff, it was inter alia set up that plaintiff was neither owner nor in possession of the plot. It was explained that in fact the said site was part of Shamlat land and public street and vests in the Gram Panchayat of village Brahkalan (Jind). It was further explained that soon before instituting the suit, the plaintiff had illegally and forcibly encroached R.S.A.No. 1617 of 2008 (O&M) 3 upon the shamlat land and public street despite objections from the defendants as well as from other villagers and the Panchayat. It is claimed that the matter was reported to the District Authorities as well. It has been elaborated that ultimately the plaintiff had confessed and had executed a writing on 28.1.2002 that he would keep the public street open and would remove the encroachment but on the next day i.e. 29.1.2002 he had filed the suit. A separate site plan was furnished by the defendants showing encroachment of the plaintiff with letters ABCDEF. It was, thus, explained that the plaintiff had not come to the court with clean hands and thus was not entitled for equitable relief. Questioning locus-standi as also cause of action in favour of the plaintiff it is claimed to be malafide, false and vexatious. Questioning jurisdiction of the civil court, dismissal of the suit of the plaintiff was sought. Elaborating the case of the defendants, it was explained that there is public street of 18 feet width as shown with letters BEF and portion BCDE was part of Shamlat land. It was claimed that the land shown with letters ABCDEF vests in Gram Panchayat of village Brahkalan. Elaborating their case, the defendants have further claimed that Radha son of Hari Ram a R.S.A.No. 1617 of 2008 (O&M) 4 neighbourer of the plaintiff had also encroached upon Shamlat land and public street soon before institution of the suit. Through there was strong objection of the villagers and others, the plaintiff and his neighbourer Radha did not budge that ultimately on 28.1.2002 had agreed to remove the encroachment “but due to ill advice”, on 29.1.2002 the suit was filed before the court by misrepresenting the facts. Asserting that the plaintiff was rank tressspasser and aggressor, it is explained that the defendants are old aged and feeble persons and are not in a position to move. It was elaborated that houses and ghers of the defendants abut the public street but they have been deprived of use of public street and shamlat land by the plaintiff as he had closed the street. It was explained that site plan furnished by the plaintiff was not only incomplete but was also misrepresenting the facts as it had not shown the connecting public street as well as public street in question. Alleging that Shamlat land had been shown to be “plot of plaintiff” to mislead the court, it is claimed that suit was misuse and abuse of legal process, whereas, the plaintiff was never in use or occupation of the suit land prior to 24.1.2002 when he had trespassed into it. Averring that the plaintiff was neither owner R.S.A.No. 1617 of 2008 (O&M) 5 nor had any legal right title, authority or concern with the land, it was questioned that public street had been encroached upon by the plaintiff and he himself had locked and closed the public street since 24.1.2002. It was canvassed that the boundary wall has been illegally erected in public street by the plaintiff immediately before institution of the suit. It was further explained that the plaintiff had intentionally omitted to implead Gram Panchayat of village Brahkalan to be a party. By way of additional plea, it was claimed that mere acts of user such as throwing rubbish, placing dung cakes, tethering cattle, installing mangers and pegs, parking carts etc., one does not become either owner or in possession. It was explained that like the parties, other village community members had been using the common Shamlat land but nobody can assert exclusive possession or ownership. Prayer for dismissal of the suit was made.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to relief of the permanent injunction as sought for? OPP 2. Whether the plaintiff has no locus standi and or cause of action to file the present suit? OPD 3. Whether the Civil Court has no jurisdiction to R.S.A.No. 1617 of 2008 (O&M) 6 try and decide the present case? OPD 4. Whether the suit is false and frivolous and the same is liable to be dismissed with special cost under Section 35-A CPC? OPD 5. Whether the suit of the plaintiff is bad for non- joinder of necessary parties? OPD 6. Whether the plaint is not verified, if yes, to what effect? OPD 7. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiff filed a suit for permanent injunction restraining the defendants from making any obstruction in the street in dispute. It has been noticed by the learned District Judge in the impugned judgment that PW-2 Sukhvinder Gorla, draftsman, in his cross-examination, conceded that the land in dispute was out of Lal Dora of the village. He did not know the details of Khewat, Khatoni, Rectangle and Khasra numbers of the plot. No mention of such details had been incorporated in the site plan Ex.P-1 prepared by him. When the site plan Ex.D-1 produced by the defendants put to the witness, he admitted that the said site plan was as per the situation existing at the spot. He also admitted that in the site plan Ex.P-1, plot shown to be owned by Ram Bhagat and Rameshwar R.S.A.No. 1617 of 2008 (O&M) 7 sons of Kundan Lal was in fact, not one plot but were two plots. He also claimed that there was a street on the Northern side of the said plots but the said street had not been shown in the site plan prepared by him Ex.P-1. He also admitted that the street shown as BEIHGFA in site plan Ex.D-1 in red colour was lying closed. Learned District Judge has further observed that the plaintiff, while appearing in the witness box as PW-1, in his cross- examination, conceded that his residential house was far away from the plot in dispute. He could not give details of his proprietary or possessory title to the plot and conceded that he had no proof to support his plea. When the said witness was confronted with site plan Ex.D-1, he admitted that there was a metalled road in front of Chopal Thola Ritiwal. Moreover, the plaintiff could not tell as to when he came in possession of the plot in dispute. The defendants had taken the plea that in fact, plaintiff had agreed to remove the obstruction in the street on 28.1.2002 in a settlement arrived at before the Panchayat but instead of doing so he had filed the present suit. Learned District Judge has observed in the impugned judgment that the contents of the settlement Mark 'A', which were purportedly signed by the plaintiff and sons of defendant Ram Bhagat showed that it was settled between the parties to get the street opened without obstruction. Learned counsel for the appellant has shown the site plan Ex.P-1 and Ex.D-1 during the course of arguments. From Ex.D-1, it R.S.A.No. 1617 of 2008 (O&M) 8 is evident that there is a street in existence which connects the main streets running on the Northern side and Southern side. The draftsman, who was examined by the plaintiff has admitted the correctness of the site plan Ex.D-1. From Ex.D-1, it is evident that the plaintiff and Radha have encroached upon the street in front of the houses of the defendants and as such the street connecting the main streets on the Southern and Northern sides is blocked on the Northern side. The site plan Ex.D-1 was proved by the defendants by examining the draftsman Ajit Singh DW-1. Both the Courts below, after examining the evidence led by the parties on record, have given a finding of fact that the street in question has been blocked/encroached upon by the plaintiff and the said finding of fact cannot be interfered in appeal by this Court. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 12, 2009 anita