RSA No.186 of 2007 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.186 of 2007 (O&M) Date of decision: February 9, 2010. Gurcharan Singh & Anr. ...Appellant(s) v. Gurdit Singh ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri NPS Kohli, Advocate, for the appellant(s). Shri Bhag Singh, Advocate, for the respondent. Rakesh Kumar Garg, J. (Oral): This is defendants' second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for permanent injunction restraining the appellants from demolishing the drain and from making encroachment in any manner on the public street, as shown in the site plan attached with the suit, was decreed. Briefly, as per the averments, house of the appellants was adjoining to the house of the plaintiff-respondent. There is a public street in front of the house of the parties and a drain is also in existence in the aforesaid public street in question. The defendant-appellants wanted to encroach upon the public street in question in front of their house by removing and demolishing the drain illegally. Hence, the suit. The appellants contested the suit by filing a written statement RSA No.186 of 2007 -: 2 :- submitting therein that the property in question was not a part of the main street, however, it was admitted that the same was brick-paved. It was admitted that the drain BC (disputed drain) was in existence in front of the house of Mohinder Kaur. The aforesaid drain was constructed by the Gram Panchayat. On the request of the plaintiff-respondent, Mohinder Kaur constructed a temporary drain in her land and had allowed the appellant- defendants to pass their waste through that drain. It was denied that the appellants wanted to encroach upon the street and it was the plaintiff- respondent who in collusion with his sons was trying to demolish the drain BC. On appreciation of evidence, the trial court decreed the suit. Appeal filed by the defendant-appellants was also dismissed vide the impugned judgment and decree dated 3.8.2006. While dismissing the appeal, the lower appellate court observed as under:- “The pleadings of the parties show that in the written statement the existence of drain BC has been admitted, through it is stated that it was constructed by the Gram Panchayat. Learned counsel for the defendants has taken me through the statements of various witnesses and the site plan produced by the plaintiff. It has been argued that the site plan produced by the plaintiff was not prepared at the spot and is of no help. Similarly, the statements of other witnesses are also not sufficient to prove the case of the plaintiff. It is further stated that the plaintiff himself did not appear in the witness box and produced his attorney – Jaswinder Singh, RSA No.186 of 2007 -: 3 :- therefore, much reliance cannot be placed on his statement. Lakhwinder Singh defendant while appearing as DW9 submitted in cross examination that the drain exists at the spot. The trial court took into consideration the report prepared by Sh. Baldev Singh Advocate, Local Commissioner appointed in C.M. File No.1 of 1.9.99, who had found that the drain BC is running at the spot for the last 25/30 years. The trial court also relied on the statement of Shamsher Singh, PW5 to hold that the street in dispute is 12 feet wide. I find that at the first instance it is unlucky that even in the 21st century the villagers are still indulging in small litigations about the existence of drain. In the present case the parties have not only indulged in filing one of the another civil suit, but a criminal litigation had also started on account of allegedly causing the injuries. I find that once the existence of street is established from the evidence as well as from the report of local commissioner, no interference in the order of the trial court is called for. The report of local commissioner, Ex.P2 also shows the existence of pucca drain at the spot. Site plan prepared by the local commissioner is Ex.P3. Therefore, the relief of permanent injunction was rightly allowed by the trial court. Hence, the findings of trial court on issue No.1 are affirmed. Consequently, the findings of the trial court on issue RSA No.186 of 2007 -: 4 :- No.2 to 4 are also affirmed.” Still not satisfied, the defendants have approached this court by filing this appeal. Learned counsel for the appellants has vehemently argued that the report of the local commissioner cannot be accepted as no notice was given to the appellants when the local commissioner inspected the spot. It was also submitted by learned counsel that the lower appellate court has not decided the appeal issue-wise and therefore, the judgment and decrees of the courts below are liable to be set aside. On the other hand, learned counsel for the respondent has supported the findings of the courts below. I have heard learned counsel for the parties and perused the impugned judgment and decrees of the courts below. In this case a local commissioner was appointed by the court who upon his visit, found that the drain in question was running at the spot. The courts below also relied upon the evidence produced on record to the effect that the street in dispute was 12 feet wide. Thus, on the basis of the evidence on record, a concurrent finding of fact was recorded by the courts below that street in question was in existence and the pucca drain in question was also existing at the spot. A perusal of the judgment of the lower appellate court would also show that the appellant has not raised any grievance with regard to the non issuance of notice to the appellants by the local commissioner at the time of visit. Even in the pleadings, the appellants have admitted the existence of public street in question and the drain in dispute. Thus, it cannot be argued that the findings of the courts below are perverse in any manner and are liable to be set aside. RSA No.186 of 2007 -: 5 :- Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. February 9, 2010. [ Rakesh Kumar Garg ] kadyan Judge