Regular Second Appeal No. 2772 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2772 of 2006 Date of decision : May 18, 2011 Hari Singh ....Appellant versus Raghu Nath and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. JS Virk, Advocate, for the appellant Mr. RS Mamli, Advocate, for respondent no. 1 Mr. Rameshwar Malik, Advocate, for respondent no. 4 L.N. Mittal, J. (Oral) Defendant no. 1 Hari Singh has filed the instant second appeal. Respondent no. 1 – plaintiff Raghu Nath filed suit against defendant no. 1 – appellant and respondents no. 2 to 4 as defendants no. 2 to 4 i.e. Mehar Singh, Madan Lal and Municipal Committee, Ladwa. The plaintiff's case is that defendants no. 1 to 3 threatened to encroach upon Gair-Mumkin Rasta comprised of khasra no. 84 measuring 1 kanal 6 marlas (vesting in respondent no. 4 – Municipal Committee). Defendants no. 1 and 2, inter alia, pleaded that defendant no. 2 is owner of the land in question and he was laying lintel on old building and Regular Second Appeal No. 2772 of 2006 -2- has not dug any foundation for raising new construction. It was also pleaded that passage is owned by Gram Panchayat. Defendant no. 3 remained ex parte in the trial court. Defendant no. 4 contested the suit and pleaded that it has sought the demarcation of the suit property through Tehsildar. Learned Additional Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 30.8.2005 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Kurukshetra vide judgment and decree dated 25.5.2006 and thereby suit of the plaintiff has been decreed directing defendants no. 1 to 3 to remove encroachment of the shops from the disputed passage. They have also been restrained from raising any construction in the street. Feeling aggrieved, defendant no. 1 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Demarcation of the disputed passage was made vide demarcation report Ex. P2 coupled with site plan Ex. P3. Relying thereon, learned appellate court has decreed the plaintiff's suit. However, perusal of the said demarcation report reveals that defendant no. 2 has encroached upon 1¼ marlas i.e. 15 x 42/2 feet out of the disputed passage and defendant no. 3 has encroached upon 1 karam wide area of the disputed passage and 55 karams long and 5 feet wide passage has been encroached upon by Gurudwara (not party to the suit). It is, thus, apparent from the demarcation report that defendant no. 1 appellant had not encroached upon Regular Second Appeal No. 2772 of 2006 -3- any part of the disputed passage nor there is any other material on record to depict that defendant no. 1 had encroached upon any part of the disputed passage. Consequently, mandatory injunction directing defendant no. 1 to remove encroachment could not be issued when it is not established that he had made any encroachment in the disputed passage. Direction of the lower appellate court to this extent is perverse and illegal and is liable to be set aside. Substantial question of law to this effect arises for determination in the instant second appeal and the same is answered accordingly. However, it has to be clarified that decree of permanent injunction against defendant no. 1 also has to be affirmed because he has no right to raise any construction in the disputed passage. For the reasons aforesaid, the instant second appeal is allowed partly. Judgment and decree of the lower appellate court are modified to the extent that decree for mandatory injunction shall subsist against defendants no. 2 and 3 only. Decree for mandatory injunction against defendant no. 1 – appellant is set aside. However, decree for permanent injunction shall subsist against defendant no. 1 as well as against defendants no. 2 and 3. ( L.N. Mittal ) May 18, 2011 Judge 'dalbir'