-1- Regular Second Appeal No. 2229 of 2009 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 03, 2011. Regular Second Appeal No. 2229 of 2009 (O&M). Puran Singh Dongwal ... Appellant VERSUS Satender Singh and others ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Chetan Mittal, Senior Advocate, with Mr. Neeraj Sachdeva, Advocate, and Mr.Harminderjeet Singh, Advocate, for the defendant-appellant. Mr. I.K. Mehta, Senior Advocate,with Mr. M.S. Kohli, Advocate, for the plaintiffs-respondents. -.- MOHINDER PAL, J. The defendant is in second appeal aggrieved against the judgment and decree passed by the lower appellate Court, whereby the judgment and decree passed by the trial Court were -2- Regular Second Appeal No. 2229 of 2009 (O&M). set aside and the suit filed by the plaintiffs-respondents for permanent injunction restraining the defendants from interfering in the use and occupation of the plaintiffs over the road 32' wide towards Southern side of Plot No.126 and further restraining the defendants from grabbing any part of the said road shown in red colour and marked by letters `A B C D' in the site plan attached with the plaint was decreed. None had appeared on behalf of defendant No.2 before the lower appellate Court and, accordingly, he was proceeded against ex parte. The claim of the plaintiffs-respondents was that they were owners in possession of residential plot No.126 and there was 32 feet wide road towards the Southern side of their plot. However, the defendants denied that there was 32 feet wide road towards the Southern side of the plot of the plaintiffs. According to the defendants, the width of the road towards the Southern side of the plot of the plaintiffs was 22 feet and that if there was any recital in the sale deed in favour of the plaintiffs showing the width of the said road to be 32 feet, then that recital was wrong. The defendants further claimed that they had already constructed shops upto D.P.C level on the disputed portion much prior to the purchase of the said property by the plaintiffs. As noticed above, the trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 5.4.2008. However, on appeal by the plaintiffs, the lower appellate Court , vide judgment and decree dated 5.5.2009, decreed the suit of the plaintiffs and restrained defendant No.1 (appellant) from interfering in the user -3- Regular Second Appeal No. 2229 of 2009 (O&M). of the plaintiffs over 32 feet wide passage existing on the Southern side of their plot No.126. Defendant No.1 (appellant) was further directed to remove the encroachment made by him on the aforesaid passage to the extent of 10 feet width existing in front of his shops Nos.33 and 34 as had been depicted in red colour in the site plan enclosed by the plaintiffs with the plaint and as had also been shown by defendant No.1 in his site plan (Exhibit D.1) by referring the said encroached portion as plot No.33A and plot No.34A. Hence this appeal by defendant No.1. I have heard Mr. Chetan Mittal, Senior Advocate, assisted by Mr. Neeraj Sachdeva, Advocate, and Mr.Harminderjeet Singh, Advocate, appearing for the defendant-appellant and Mr. I.K. Mehta, Senior Advocate, assisted by Mr. M.S. Kohli, Advocate, appearing for the plaintiffs-respondents and have gone through the records of the case. Admittedly, the plaintiffs-respondents are owners of residential plot No.126 measuring 109 square yards having purchased the same from Smt. Kanta vide registered sale deed dated 2.5.2001 (Exhibit P.W.1/B). Smt. Kanta had purchased the said plot from Amar Nath Narula through his attorney Puran Singh son of Dal Singh (defendant-appellant). It is worth noticing that in both these sale deeds i.e Exhibit P.W.1/B and Exhibit D.1, it has been clearly mentioned that the width of the road in the Southern side of plot No.126 of the plaintiffs is 32 feet. Significantly, the sale deed dated 8.1.1992 (Exhibit D.1) in favour of Smt. Kanta, the vendor of the plaintiffs, had been -4- Regular Second Appeal No. 2229 of 2009 (O&M). executed by none else than defendant-appellant himself as the attorney of aforesaid Amar Nath Narula. While deposing in Court as D.W.1, defendant-appellant Puran Singh admitted in his cross- examination having executed the sale deed (Exhibit D.1)in favour of aforesaid Smt.Kanta as the attorney of Amar Nath Narula. He further admitted that in the sale deed (Exhibit D.1), the width of the road on the Southern side of the plot of the plaintiffs has been mentioned as 32 feet. The matter does not end here. The defendant-appellant, who is admittedly the owner of shops Nos.33 and 34, which exist on the Southern side of the plot of the plaintiffs across the 32 feet wide road, did not produce the sale deeds regarding shops Nos. 33 and 34 on record. Had he produced the same on record, they (sale deeds of Shops Nos.33 and 34) would have revealed the width of the road existing on the Northern side of these shops and on the Southern side of the plot of the plaintiffs. It leads to the only inference that the defendant-appellant had intentionally withheld the sale deeds of shops Nos.33 and 34 as they did not support his (defendant- appellant's) case and, rather, they proved the case of the plaintiffs against the said defendant. Still further, the plaintiffs produced on record sale deed (Exhibit P.X) in respect of plot No.127 and sale deed (Exhibit P.Y) in respect of plot No.128, which are adjacent to plot No.126 owned by the plaintiffs, and both these sale deeds (Exhibit P.X and P.Y) show that the width of the road on the Southern side of plots Nos.127 and 128 is 32 feet. No doubt, defendant also placed on record sale deeds -5- Regular Second Appeal No. 2229 of 2009 (O&M). (Exhibits D.B and D.C) pertaining to plots Nos. 133 and 135, respectively, wherein the width of the road has been shown as 22 feet, but plots Nos.124 to 128 are in different lane and on the Southern side of the said lane the width of the road is 32 feet. Said width, as mentioned above, is also mentioned in the sale deeds pertaining to plots Nos. 126, 127 and 128. Thus, by producing the sale deeds (Exhibits D.B and D.C), the defendant- appellant was not at gain. In fact, admission of defendant- appellant Puran Singh (D.W.1) in his cross-examination that he had sold plot No.126 to Smt.Kanta, vendor of the plaintiffs, by mentioning the width of the passage on the Southern side of plot No.126 as 32 feet is clincher of the issue. It is worth noticing that the lay out plan (Exhibit D.2) of the area shows existence of 44 shops in four different lanes i.e shops Nos. 1 to 11, 12 to 22, 23 to 33 and 34 to 44, in the Southern side of plots Nos. 124 to 128 including plot No.126 of the plaintiffs. All shops are of same dimensions. It was for this reason that defendant- appellant had not produced on record sale deeds of shops Nos.33 and 34 owned by him as they definitely mentioned the width of the road towards the Southern side of the plot of the plaintiffs as 32 feet . In view of the above, I do not find any patent illegality or irregularity in the findings of fact recorded by thelower appellate Court, which may give rise to any substantial question of law in the present appeal. Hence, the present appeal is dismissed. However, -6- Regular Second Appeal No. 2229 of 2009 (O&M). there shall be no order as to costs. ( MOHINDER PAL ) March 03, 2011. JUDGE ak