RSA No.1759 of 2007 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.1759 of 2007 Date of decision:19.8.2010 Lachhman Dass ...Appellant vs Madan Lal ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Sumeet Goel, Advocate, for the appellant. Rakesh Kumar Garg,J.(Oral) This is plaintiff's second appeal challenging the judgment and decree of the lower Appellate Court whereby appeal filed by defendant- respondent was accepted and the judgment and decree of the trial Court decreeing the suit of the plaintiff-appellant was set aside and the suit for mandatory injunction of the appellant was ordered to be dismissed. As per the averments, appellant filed a suit for mandatory injunction stating that he was owner in possession of the Baithak marked by letters ABCD and shown in green colour in the site plan attached with the plaint and he left a piece of land measuring 3'x14-1/2'. On the Eastern side of his Baithak along with the wall marked by letters CD and thereafter there was a brick paved street measuring about 12 ft wide built by the Gram Panchayat. The appellant had fixed a door measuring 3ft at point 1 to 2 in the wall CD. The house of the defendant-appellant was situated on the Southern side of the Baithak, and it is opening on the Eastern side in the aforesaid brick paved street. It was the further case of the appellant that on RSA No.1759 of 2007 2 the Northern side of his Baithak there was another brick paved street constructed by the Gram Panchayat which was 10-1/2ft wide in front of his house. However, the defendant-respondent forcibly closed the door of the wall CD at point 1 to 2 by raising new construction. Since the defendant- respondent failed to remove the encroachment,, the present suit for mandatory injunction was filed directing the respondent to remove the brick pave encroachment whereby door of the Baithak of the appellant was closed. Appellant also sought further relief of mandatory injunction directing the defendant-respondent to clean the Eastern wall of his Baithak by removing the pieces of bricks piled there illegally and forcibly. The suit was contested by the defendant-respondent. Existence of the brick paved street constructed by the Gram Panchayat was admitted. However, further averments of the plaint were denied pleading that the plaintiff-appellant had the door of his Baithak on the Northern Side. It was further pleaded that the defendant-respondent never closed the door of the Baithak of the appellant as alleged and the plaintiff-appellant has no right to open the door at point 1 to 2. Dismissal of the suit was prayed for. From the pleadings of the parties, the following issues were framed:- 1.Whether plaintiff is entitled to decree for mandatory injunction as prayed ?OPP 2.Whether plaintiff has no locus standi to file the present suit ? OPD 3. Whether plaintiff has no locus standi to file the present suit ? OPD 4. Relief. RSA No.1759 of 2007 3 Both the parties adduced evidence in support of their case. The trial Court under issue No.1 held that the appellant had proved that respondent No.1 illegally closed the door of his Baithak at point 1 to 2 by raising a a wall and had illegally put pieces of bricks in front of the wall of the Baithak. Issues No.2 and 3 were decided against the defendant- respondent being not pressed. Resultantly, the suit of the appellant was decreed. Aggrieved by the same defendant-respondent preferred an appeal before the lower Appellate Court, which was accepted by the lower Appellate vide impugned judgment and decree dated 30.1.2007. While accepting the aforesaid appeal, the lower Appellate Court has observed as under:- “ After hearing both the sides and perusing the Lower Court file, I am of the considered opinion that the findings of the learned Trial Court on issue No.1 could not be sustained in law as also on facts and the same are liable to be reversed. The present suit is for mandatory injunction for directing the defendant/appellant to remove the brick paved encroachment at point 1 to 2, whereby door, of the Baithak of the plaintiff/respondent, has been closed. The further relief claimed by the plaintiff/respondent is that the defendant/appellant be directed to clear the eastern wall of his Baithak by removing pieces of bricks put their by the defendant/appellant. Admittedly, there is a piece of land measuring 3' x 14-1/2 situated on the Eastern side of the house of the plaintiff/respondent in between his house and the brick paved street. However, the plaintiff/respondent has failed to prove his possession or ownership over the said piece of land measuring 3'x14-1/2'. When appeared as his own witness as PW1, the plaintiff/respondent clearly admitted in his cross examination RSA No.1759 of 2007 4 that the said piece of land measuring 3'x14-1/2' was in possession of the defendant/appellant for the last about eight years. Further, the local Commissioner also mentioned in his report Ex.P3 that construction of the door in dispute was one year old, meaning thereby, that the disputed door had been opened by the plaintiff/respondent only a few months prior to filing of the suit by him. Since, the said door opened in the land in possession of the defendant/appellant, he was within his right to block the same by raising a wall. Admittedly, main door of the house of the plaintiff/respondent opened on the northern side in the street. The learned Trial Court did not appreciate the evidence led by the parties and only after referring to the same, concluded that the defendant/appellant had illegally closed the door in dispute. Therefore, the findings on issue no.1 recorded by the learned Trial Court could not be sustained in law as also on facts. In fact, from the own admission of the plaintiff/respondent in his cross-examination, the defendant/appellant is proved to be in possession of the open space measuring 3'x14-1/2' situated on the eastern side of the house of the plaintiff/respondent and, therefore, the defendant/appellant was within his right to close the door in dispute by raising a wall. Hence, no relief of mandatory injunction could have been granted to the plaintiff/respondent. Accordingly, findings of the learned Trial Court on issue no.1 are illegal and erroneous and the same is thus reversed and it is held that the defendant/appellant was within his right to close the door in dispute which the plaintiff/respondent had opened towards the land in possession of the defendant/appellant.” Not satisfied with the aforesaid judgment and decree of the lower Appellate Court, the appellant has approached this Court by way of the instant appeal. I have heard the learned counsel for the appellant and perused RSA No.1759 of 2007 5 the impugned judgment and decrees of the Lower Appellate Court. Admittedly there is a piece of land measuring 3ftx14-1/2' situated in the Eastern Side of the house of the plaintiff-appellant in between his house and the brick paved street. However, the appellant has failed to prove his possession or ownership over the said piece of land measuring 3ftx14-1/2'. Not only this, when he appeared as his own witness as PW1, the appellant admitted in his cross examination that the piece of land measuring 3ftx14-1/2' was in possession of the defendant-respondent for the last about 8 years. From the own admission of the appellant in his cross-examination respondent is proved to be in possession of the open space measuring 3ftx14-1/2ft situated in the Eastern side of the appellant's house. Hence, no relief of mandatory injunction could have been granted to the appellant. Learned counsel for the appellant was not able to convince this Court as to how the suit in the present form, for mandatory injunction to remove the encroachment from the suit property which was not in his possession and the ownership which could also not be proved, was maintainable. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. (Rakesh Kumar Garg) Judge. August 19, 2010 rk