IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1410 of 1983 Date of Decision: 15.12.2008 Hethi Singh .... Appellant vs. Shiv Kumar and others .... Respondents Coram: Hon'ble Mr. Justice Rajive Bhalla. Present: Mr. Gopi Chand, Advocate for the appellant. Ms. Simran Chahal, Advocate for Mr. J.S. Chahal, Advocate for the respondents. Rajive Bhalla, J, (Oral) Challenge in this appeal is to judgments and decrees dated 22.09.1981 and 22.03.1983 passed by the Sub Judge Ist Class, Jind and the Additional District Judge, Jind. The plaintiff-appellant filed a suit for grant of a mandatory injunction to restrain the respondents from encroaching upon chabutra marked ABCD and the portion DEFG forming part of a public street. It was also prayed that a mandatory injunction be issued to direct the respondents to demolish the structure raised on the portion FGHI as it is a “shamlat chowk” i.e., land used for common purposes. The respondents, opposed the suit by asserting that the portion ABCD is part of a street, the portion DEFG is owned by the respondents and has never been used for the common purposes and portion FGHI has been purchased by the defendants and has never been used as a “shamlat chowk”. The trial court, after considering the pleadings, the arguments addressed and the evidence adduced decreed the suit partly by granting a permanent injunction to restrain the respondents from interfering with the RSA No.1410 of 1983 -2- chabutra ABCD. However, the prayer for grant of a mandatory injunction to direct the respondents to demolish the construction FGHI was dismissed. Aggrieved by the partial dismissal of the suit, the appellant filed an appeal. The first appellate court dismissed the appeal and as a result affirmed the findings recorded by the trial court. Counsel for the appellant submits that the respondents have not placed any evidence on record to establish their ownership of land FGHI. The sale deed, placed on record has not been proved and the court below have proceeded to dismiss the suit and the appeal without deciding the objection raised by the appellant. It is further submitted that the appellant's statement that the land was left as shamlat chowk by Shanti Saroop has been read out of context by the courts below to deny the relief of mandatory injunction. It is submitted that in the absence of any evidence, cogent or otherwise to establish their ownership with respect to the shamlat chowk, the courts below committed an error in dismissing the suit and the appeal. Counsel for the respondents, on the other hand submits that it was for the appellant to establish his case namely, that the land FGHI was a shamlat chowk. The appellant has failed to produce any evidence in support of his case and therefore, the courts below rightly dismissed the suit so far as it relates to the prayer for grant of a mandatory injunction. It is further submitted that as the appellant himself admits that his father Shanti Saroop was owner of the land FGHI, his admission negatives the appellant's stand that the land FGHI is a shamlat chowk. I have heard counsel for the parties and perused the impugned judgments. Both the trial court as also the first appellate court after appraising the pleadings and the evidence produced on record have recorded a concurrent finding that the appellant has failed to establish that the land FGHI was left as a shamlat chowk. Admittedly, the respondents RSA No.1410 of 1983 -3- have raised constructions and are using the construction FGHI for the last more than thirty years. A perusal of the evidence on record discloses that the entire property was owned by Shanti Saroop. He sold it in parts to the appellant and the respondents. The appellant alleges that the land FGHI was left as a shamlat chowk. The onus, therefore, to establish that the land FGHI was left as shamlat chowk lay upon the appellant. The only evidence produced to discharge this onus is a recital in the appellant's sale deed that the land FGHI is a shamlat chowk. As held by the courts below, the recital in the sale deed binds parties thereto and does not bind the respondents who are strangers to this sale deed. The respondent has not produced any other evidence in support of his case. The argument addressed by the counsel for the appelant that the respondents have failed to prove their sale deed is irrelevant as the appellant has failed to establish his submission that the land FGHI is a shamlat chowk. In a civil suit onus shifts from one side to the other only after the party required to establish a fact, succeeds in producing evidence to establish the fact. The concurrent findings of fact recorded by the courts below do not call for interference. As no question of law much less a substantial question of law arises for consideration, the appeal is dismissed. 15.12.2008 (Rajive Bhalla) sk Judge