R. S. A. No. 1847 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1847 of 2011 (O&M) Date of Decision : May 13, 2011 Arun Kumar and others .... Appellants Vs. Ayodhya Nath Goyal and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. G. S. Bal, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5839-C of 2011 : Allowed as prayed for, subject to all just exceptions. C. M. No. 5218-C of 2011 : This is application for bringing on record legal representatives of defendant Ranjit Kumar and for permitting them to file the instant second appeal. It is alleged that defendant Ranjit Kumar has died leaving behind widow, two sons and a daughter, mentioned in paragraph 5 of the application, as his only legal representatives. The application is accompanied by affidavit. Accordingly, application is allowed subject to all R. S. A. No. 1847 of 2011 (O&M) 2 just exceptions and persons mentioned in paragraph 5 of the application are ordered to be brought on record as legal representatives of defendant Ranjit Kumar (since deceased) and are permitted to file the instant second appeal as such. Main Appeal : This is second appeal by legal representatives of defendant Ranjit Kumar after the defendant remained unsuccessful in both the courts below. Suit was filed by respondents/plaintiffs Ayodhya Nath Goyal and Pardeep Kumar against Ranjit Kumar – defendant alleging that plaintiffs are owners in possession of Lord Hotel, Pathankot. Defendant is tenant of Pardeep Kumar – plaintiff no.2 in portion shown in green colour in site plan attached to the plaint. Another room shown in pink colour in the plan is in possession of other tenant. Defendant is running Kundan Dhaba in his tenancy premises. Portion depicted by letters ABCDEFGH in red colour in site plan is the only passage for entrance to the Lord Hotel being run by the plaintiffs. The aforesaid portion, which is the disputed property, is being used as passage by plaintiffs as well as by defendant and other tenants. Plaintiff no.1 is also residing on first floor. The defendant, however, threatened to encroach upon and obstruct the disputed passage. Accordingly, plaintiffs sought permanent injunction against the defendant from doing so. R. S. A. No. 1847 of 2011 (O&M) 3 Defendant inter alia pleaded that plaintiffs are only co-sharers in the building in question along with other legal heirs of Pran Nath Aggarwal, who was owner of the building in question. It was pleaded that plaintiff no.1 and Pran Nath Aggarwal (father of plaintiff no.2) were joint owners of the entire building in question. Plaintiff no.1 has 30% share in it. Plaintiff no.1 and Pran Nath Aggarwal let out the ground floor of the building in the year 1972 to the defendant including portion marked by letters DEFG, except western 2½ feet wide part thereof, which was kept for common use as passage by the defendant and the owners of the building. From the very inception of tenancy, defendant is using the disputed portion by placing his counter and eatables. Accordingly, plaintiffs and defendant are using only 2½ feet wide part of the disputed passage and not the entire disputed site as passage. Various other pleas were also raised. Learned Civil Judge (Junior Division), Pathankot, vide judgment and decree dated 06.11.2006, decreed the plaintiffs' suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Gurdaspur, vide judgment and decree dated 22.01.2011. Feeling aggrieved, legal representatives of defendant have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that R. S. A. No. 1847 of 2011 (O&M) 4 there is counter of the plaintiffs themselves in one corner of the disputed passage and there is counter of the defendant of same width as the counter of plaintiffs in the other corner of the passage, and therefore, plaintiffs can have no grievance against the counter of the defendant. The contention is completely misconceived and untenable. It is the case of the defendant in the written statement itself that only 2½ feet wide portion of the disputed passage is being used as passage, whereas passage is nine feet wide. Courts below have rightly held that the plaintiffs, while running the hotel, would not have kept only 2½ feet wide passage for themselves and their customers to the hotel while giving about seven feet wide passage to the defendant to occupy for the counter of his Dhaba. In fact, to wriggle out of this situation, counsel for the appellants contended that counter of the defendant is also four feet wide only. However, this contention cannot be accepted in view of pleading of defendant in the written statement. From the cross-examination of the defendant, it turned out that the entrance depicted by letters GDEF leads to the gallery depicted by letters ABCDEFGH, which is not part of tenancy premises of the defendant. The defendant also admitted that the disputed passage is the only passage for entry to the entire building, comprising Hall Room on ground floor and rooms on first and second floors. The defendant failed to depict that the disputed passage or any part thereof is part of the tenancy premises of the defendant. The defendant even refused to affix signatures regarding his presence at the time of inspection R. S. A. No. 1847 of 2011 (O&M) 5 of the spot by the Local Commissioner. The Local Commissioner found that the disputed passage is nine feet in width and 23½ feet in length. The defendant had placed movable furniture in area measuring twenty feet in length and seven feet in width leaving only two feet wide passage in the length of 23½ feet, for the main building. This itself would show that the defendant has made encroachment on the disputed passage illegally and unauthorisedly by keeping his movable furniture. The plaintiffs would not have kept two feet wide passage only for their hotel. The defendant also admitted that gallery ABCH is not part of the tenancy premises. Hall of the Dhaba is beyond the gallery on the northern side. When the gallery falling between the Hall of defendant's Dhaba on the one hand and disputed passage on the other hand is not part of the defendant's tenancy premises, the disputed entrance or passage also cannot be part of the defendant's tenancy premises. For the reasons aforesaid, I find no merit in the instant second appeal. Both the courts below have properly appreciated the evidence and come to concurrent finding that the disputed passage is not part of tenancy premises of the defendant and rather the disputed passage is meant for common use of the entire building and cannot be encroached upon or obstructed by the defendant. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in exercise of R. S. A. No. 1847 of 2011 (O&M) 6 second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly, the appeal is dismissed in limine. May 13, 2011 ( L. N. MITTAL ) monika JUDGE