R.S.A No. 1511 of 2008 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 1511 of 2008 (O&M) Date of decision : September 16, 2009 Smt. Santosh & others, ...... Appellant (s) v. Jogi Ram and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Anurag Jain, Advocate for the appellants. Mr. Subhash Ahuja, Advocate for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This appeal has been filed against the judgments of the Courts below with regard to the counter claim filed by the appellants to the effect that they are entitled to the laying of underline pipe line for water connection through open area abutting the house of the respondents. On 20.5.2008, the following order was passed :- “ It is, inter-alia, contended that the appellant/defendants wanted to lay underground water pipeline in the street in question, which is being used by R.S.A No. 1511 of 2008 (O&M) ::2:: all the inhabitants as a passage to their residences. However, the appellants had been denied the said relief only on a technical ground. It is further submitted that water pipeline has to be laid down underneath the ground and not above the ground and, therefore, no prejudice would be caused to any of the inhabitants of the street. Notice of motion for 24.07.2008. Notice re: stay as well.” Thereafter on 14.7.2009, the following order was passed :- “ The dispute in this case relates to entitlement of the appellant to use the open area abutting the house of the respondents. Both the parties are in serious dispute at the position on the spot. Ultimately, learned counsel for the appellants has offered and learned counsel for respondent No.1 has no objection if a Local Commissioner is appointed to find out the exact ground situation. Consequently, Ms Daljeet Kaur, learned counsel of this Court is appointed as Local Commissioner to visit the site in village Chanaut, Tehsil Hansi, District Hisar and to give a report on two aspects First, whether the alleged private street is the only means of access to the house of the appellants and whether it has been blocked at its intersection with the public street. The second aspect is whether the house of the appellants and their uncle Sattar Singh could have been partitioned in such a manner as to give families of both the brothers access to R.S.A No. 1511 of 2008 (O&M) ::3:: the main road which is stated to be abutting the house of Sattar Singh. Learned Local Commissioner has indicated that she would be visiting the site on 18.07.2009 and would reach the site in dispute by 12 O'Clock. Learned Local Commissioner fee be fixed at Rs.20,000/- all inclusive. Learned counsel for the appellants has undertaken to pay the amount to learned Local Commissioner by 16.07.2009. In case, it is found that the assertion made by learned counsel for the appellant is correct then the respondents would be liable to defray half the fees of learned Local Commissioner. Learned Local Commissioner would submit her report on or before 27.07.2009 with an advance copy to learned counsel for the parties. Adjourned to 27.07.2009.” The Local Commissioner has submitted report dated 24.7.2009 along which she has attached the attendance sheet showing the presence of the appellants as well as the respondents, 10 photographs, and two plans; first showing passage, and the second showing division between the house of the appellants and Teka's brother. As per the report, the area in dispute is a part of a street which is the sole means of ingress and outgress for the appellants. Counsel for the respondents has also filed objections to the above said report, which were taken on record vide order dated 27.8.2009 passed in C.M No.9399-C of 2009. In the objections, the factual position R.S.A No. 1511 of 2008 (O&M) ::4:: has not been disputed but it has been mentioned that in fact earlier there was another passage for the appellants but it has also been admitted that the said passage has been blocked by a third person. Counsel for the appellants has proposed the following questions :- “ a) Whether the judgments and decrees passed by the Courts below qua the counter claim of the appellants are tenable in law ? b) Whether a party can be declined a relief on technical grounds ? c) Whether the land which has been concluded to be a street, can be used for laying underground water pipe ? d) Whether the appellants shall suffer irreparable loss, if they are not allowed to lay water pipe in the street in question ?” The questions proposed are pure questions of fact. Learned counsel for the appellants has argued that once both the Courts have held that the area in dispute was a part of the street, and had in fact dismissed the suit of the plaintiff/respondent No.1 with regard thereto, the counter claim for claiming a right to lay underground water pipe could not have been declined. A perusal of the judgments of the Courts below corroborates this argument. Apart from that it cannot be lost sight of that counsel for the respondents had agreed for the appointment of a Local Commissioner whose report, as mentioned above, confirms the assertion that the area in dispute is a part of the only street from which the appellants have ingress and outgress. The argument that earlier there was a different passage R.S.A No. 1511 of 2008 (O&M) ::5:: adopted by the appellants is meaningless in view of the admission that some third person has blocked the access thereto. The argument that the questions proposed are pure questions of fact has to be rejected in view of the provisions of Section 100(3) of the Code of Civil Procedure. In any case, as noticed above, the Courts below did hold that the land in dispute forms a part of the only street giving access to the appellants. Having found that, the refusal of injunction would constitute such material irregularity as to be suffering from the vice of illegality. In the circumstances, this appeal is allowed, the judgments and decrees of the Courts below rejecting the counter claim of the appellants are set aside and the counter claim is decreed. It is held that the appellants have a right to lay an underground water pipe line through points 2 and 3 on the site plan annexed with the report of the Local Commissioner as Annexure R-2. As the main appeal has since been allowed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) September 16, 2009. JUDGE `kk'