R.S.A.No. 2317 of 2004 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2317 of 2004 (O&M) Date of decision: 11.12.2009 Tarsem Singh and another ......Appellants Versus Gurmail Singh .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.P.K.Gupta, Advocate, for the appellants. Mr.Sandeep Jain, Advocate, for the respondent. **** SABINA, J. Plaintiffs-appellants filed a suit for declaration and permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.), Hoshiarpur vide judgment and decree dated 24.9.2002. In appeal, the said judgment and decree were upheld by the Additional District Judge, Hoshiarpur vide judgment and decree dated 28.4.2004. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No. 2317 of 2004 (O&M) 2 “2. In nut shell, the case of the plaintiffs was that they were owners of the land shown as green in the site plan and that the defendant was owner of the land shown as yellow, along with the passage in dispute; that the land of Lashkar Singh was situated towards the southern side of their properties and all the said properties had khasra no.104 and abut on street on the western side having passage from that side; that in the year 1891 there had been partition of the aforesaid khasra number between the co-sharers and the land of said khasra number was carved out into different plots which were allotted to the co-sharers; that the plaintiffs were allotted khasra no.104/2/8, whereas the defendant was allotted khasra No.104/2/35; that after the patition of the land, plaintiffs had been using the passage shown as red marked ABCD in the site plan for approaching their land from the main street situated towards the western side; that there was no other passage to the land of the plaintiffs except the passage marked ABCD; that the plaintiffs had been using the passage without any interruption continuously and peacefully for a period of more than 100 years and they, thus acquired the right of easement by way of necessary and prescription; that the defendant was threatening to obstruct the passage of the plaintiffs by raising R.S.A.No. 2317 of 2004 (O&M) 3 construction over the passage in dispute; that the defendant, however, was not desisting from his illegal design. Hence, the suit was filed. 3. The suit was contested by the defendant by taking up preliminary objections that the suit was not maintainable; that the site plan furnished by the plaintiffs was not correct as per the spot; that the suit was not within limitation. On merits, it was averred that the property owned by the defendant measuring 29 marlas had been purchased by Bachint Singh on the basis of sale deed dated 28.8.1956 and the property of the defendant was within the lal lakir of the village whereas the property of the plaintiffs was out side the lal lakir of the village. It was claimed that towards the northern side of the property of the defendant was the property of Sardul Singh and on the southern side was that of Lashkar Singh and on the eastern side was the property of the plaintiffs and on the western side was a street. It was denied that there was any passage from the property of the defendant. It was also refuted that the property of plaintiffs, defendant and that of Lashkar Singh had been joint or that it bore khasra No.104. It was asserted that there was old construction of the defendant in the property owned by him but the plaintiffs had intentionally R.S.A.No. 2317 of 2004 (O&M) 4 not indicated the bath room, khurra, handpumb and khurli (manger) of the defendant, in his site plan. It was claimed that the measurement of the properties given in the site plan of the plaintiffs was also incorrect. It was further asserted that the properties never had been joint and there was thus no question of partition of the same. It was denied that plaintiffs ever used the site in dispute as passage or that the plaintiffs acquired the right of passage by way of prescription or easement. The defendant denying the rest of the averments of the plaint prayed for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether there exists passage shown red and marked ABCD in the site plan attached with the plaint and as fully detailed in the head note of the plaint? OPP 2. Whether plaintiffs have acquired right of easement of passage through the passage shown red and marked ABCD in the site plan attached with the plaint? OPP 3. Whether suit of the plaintiff is not maintainable in the present form since no passage exists as alleged? OPD 4. Whether site plan attached with the plaint is not correct? If so, which is the correct site plan? OPD R.S.A.No. 2317 of 2004 (O&M) 5 5. Whether suit is time barred? OPD 6. Whether plaintiffs are entitled to declaration as prayed for? OPP 7. Whether plaintiffs are entitled to permanent injunction as prayed for ? OPP 8. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for declaration that they had acquired right of easement of passage shown in red colour in the site plan marked with letters ABCD. Both the Courts below, after appreciating the evidence led by the parties on record, have dismissed the suit of the plaintiffs as the plaintiffs had failed to establish that the passage marked as ABCD was being used by the plaintiffs. A perusal of Ex.P-8 (placed on record as Annexure A-1) reveals that the passage in dispute has been shown in red colour marked with letters ABCD. The case of the plaintiffs was that this was the only passage available to them to reach the street on the Western side. The property of the plaintiffs has been shown in green colour and thereafter, on the Western side is the property of defendant Gurmail Singh which abuts the street. The passage in dispute abuts the property of Gurmail Singh on the Northern side. Learned Additional District Judge, in para 12 of the R.S.A.No. 2317 of 2004 (O&M) 6 impugned judgment, has observed as under:- “ No doubt, the plaintiffs have placed on record copies of the mutations (with Punjabi translation) Ex.P-4 to Ex.P-7, but the said revenue record is not document of title and moreover, the copies of the latest jamabandis with respect to the said khasra numbers had not been placed on record. Apart from this, as per the revenue record i.e. copy of the Aks-shajra Ex.P-4 and its Punjabi translation, it is apparent that the passage was provided to khasra No.104/2/8 from the eastern side. Therefore, once passage is provided to the property allotted to the partition, no passage to the said property could be claimed from the property of adjoining co-sharers by way of easement of necessity. Apart from this settled proposition of law, the plaintiffs failed to connect their property and the property of the defendant to be the same which earlier more khasra No.104 and thereafter had been partitioned by metes and bounds.” Thus, a passage was provided to the plaintiffs on the Eastern side of their land. Moreover, a perusal of site plan Ex.P-8 also reveals that there is a passage on the Eastern side of the property of the plaintiffs. The said passage is in between the property of the plaintiffs and house of Wattan Singh etc. The said passage leads to the street on the Eastern side. Learned counsel for R.S.A.No. 2317 of 2004 (O&M) 7 the appellants, during the course of arguments, has submitted that, in fact, no such passage on the Eastern side was in existence. In this regard, the plaintiffs had failed to examine the draftsman, who had prepared the site plan Ex.P-8 and thus, the defendant has been denied the opportunity to cross-examine the draftsman in this regard. Both the Courts below have given a finding of fact, after appreciating the evidence on record led by the parties, that the passage in dispute marked with letters ABCD in the site plan Ex.P-8 did not exist at the spot and had never been used by the plaintiffs. The said finding of fact arrived at by the Courts below cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 11, 2009 anita