RSA NO.3131 OF 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL NO.3131 OF 2011 DATE OF DECISION: 6 th December, 2011 Nazar Ram .... Appellant Versus Darshan Singh & another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. * * * * PRESENT: Mr. Krishan Sehajpal, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Plaintiff Nazar Ram having failed in both the courts below has filed the instant second appeal. The plaintiff-appellant alleged that he purchased a plot vide registered sale deed dated 06.07.1987 and out of it, left the disputed site as his exclusive private street. Accordingly the plaintiff sought permanent injunction restraining the defendants from interfering in plaintiff's user of the said street and from further extending the said street forcibly and illegally. The defendants controverted the plaint allegations and pleaded that plaintiff is neither owner nor in possession of the disputed site. It is part of public street and is used by inhabitants of the village including the defendants. The disputed site is not part of the plot purchased by the plaintiff. It was also alleged that the disputed street has been brick paved by Gram Panchayat and drain has also been constructed in it by Gram Panchayat. Various other pleas were also raised. Learned Civil Judge (Senior Division), Nawanshahr vide RSA NO.3131 OF 2011 -2- judgment and decree dated 21.01.2008 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge Shaheed Bhagat Singh Nagar vide judgment and decree dated 04.02.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff while appearing as PW-1 and his both other witnesses Gian PW-2 and Tarsem Lal PW-3 categorically admitted that the disputed street has been brick paved by Gram Panchayat and drain made by Gram Panchayat also exists in the suit property and there is no other street or passage leading to the house of defendants. In view of this categorical admission by plaintiff and his witnesses, it cannot be said that the disputed street is exclusive private street of the plaintiff. On the other hand, the very fact that this street was admittedly brick paved by Gram Panchayat which also constructed drain in the street would depict that it is a public street. In addition to it, it has also been admitted by plaintiff and his witnesses that there is no other street or passage for the house of defendants. This fact would also demonstrate that defendants are also using the disputed street. The plaintiff also stated that door and window of the house of Chain Ram also open in the disputed street. This fact would again demonstrate that the disputed street is public street. Counsel for the appellant contended that Chain Ram is none else but real brother of the plaintiff and the disputed street is meant for both of them. The contention cannot be accepted because no such plea was taken by the plaintiff in the plaint. On the other hand, in the plaint, the plaintiff pleaded the disputed street to be his exclusive private street. However, door and window of house of Chain Ram also open in the RSA NO.3131 OF 2011 -3- said street depicting that it is public street. Counsel for the appellant contended that Sukhu Ram DW-2 has admitted that disputed street has been left by the plaintiff out of the land purchased by him as passage for himself and the street is not being used by the defendants. However, statement of DW-2 has to be read as a whole. He categorically stated in examination-in-chief that it is public street and it was brick paved by Gram Panchayat while he was Sarpanch. On demarcation also, it was found to be public street as per demarcation report made in his presence. Even in cross-examination, this witness stated that disputed street is being used not only by the plaintiff and his brother but also by defendant No.2, who is father of defendant No.1. Consequently it cannot be said that defendants are not using the disputed street. Rather plaintiff's own evidence depicts that defendants are also using the disputed street because according to plaintiff's own evidence, there is no other street or passage for the house of the defendants. In view of the aforesaid discussion, it becomes manifest that finding recorded by the courts below to non-suit the plaintiff is fully justified by the evidence on record and does not suffer from any infirmity, much less perversity or illegality so as to call for interference in exercise of second appellate jurisdiction. It is a pure finding of fact recorded by both the courts below against the plaintiff, which does not give rise to any question of law much less substantial question of law for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 6th December, 2011 'raj'