RSA No.3972 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3972 of 2009 (O&M) Date of Decision: November 03, 2009 Harbhajan Singh ...........Appellant Versus Amrik Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sandeep S.Majithia, Advocate for the appellant. ** Sabina, J. Plaintiffs filed a suit for permanent injunction. The suit of the plaintiffs was decreed by the Civil Judge (Junior Division) Amritsar vide judgment and decree dated 23.9.2008. The appeal filed by defendants was dismissed by the Additional District Judge, Amritsar vide judgment and decree dated 7.9.2009. Hence, the present appeal by the defendants. The facts of the case, as noticed by the Additional District Judge in paras 2 to 5 of its judgment, read as under:- “ 2. The brief facts of the present case are like this that plaintiffs Amrik Singh and others have filed suit for permanent injunction restraining the defendants from demolishing the passage which passed through the land bearing khasra No.2315 Northern side ( 9 marlas out of 7 kanals 4 marlas), 23/14(9 marlas RSA No.3972 of 2009 (O&M) 2 out of 7 kanals 4 marlas) and 23/12 (4 marlas out of 1 kanal 6 malas) and leads to the house of plaintiffs as mentioned in the jamabandi for the year 2000-01, and as described and detailed in the head note of the plaint. It has been alleged by the plaintiffs that they are co-owerns in respect of land bearing khewat No.240 khasra No.23/14 measuring 7 kanals 4 marlas situated in village Rakh Jhita, Tehsil and District Amritsar. Similarly, the defendant No.5 is owner in respect of land bearing khewat No.235, khasra No.23/15 measuring 7 kanals 4 marlas. It has been further pleaded by the plaintiffs that there is a passage on the Northern side of land bearing khasra No.23/15 (7K-4M) having an area of 9 marlas out of the said total area of 7 kanals 4 marlas as per revenue record. Similarly, area of 9 marlas out of total area of khasra no.23/14(7K-4M) is also under the said passage which connects with a passage over an area of 4 marlas out of khasra no.23/13 leading to the house of the plaintiffs. It has been further pleaded that the said passage is duly depicted in the revenue record and the house of the plaintiffs is situated in khasra No. 23/26 and 23/13. It has been further pleaded that the defendants have no right, title or interest over the area under passage, hence, they have no right to demolish the passage in dispute. It has been further pleaded that the passage in dispute is only available access to the houses of the plaintiffs. It has been further pleaded that the defendants having malafide and dishonest intentions have threatened the plaintiffs that they would demolish the passage in question and thereby the plaintiffs would be deprived the access RSA No.3972 of 2009 (O&M) 3 to their houses. It has been further pleaded that the plaintiffs have requested to the defendants not to take law into their own hands but the defendants are adamant in their threats which has given a rise to the cause of action, hence, the present suit. 3. Notice of the suit was given to the defendants. Defendants put their appearance and filed their written statements through their counsels. Defendants No. 1 to 4 in their written statement have taken the preliminary objections that the plaintiffs have not come to the court with clean hands and they have suppressed the material facts from the court and as such, they are not entitled to the discretionary relief of injunction. It has been further pleaded that the plaintiffs are guilty for forging and manipulating the documents due to which also they are not entitled to the discretionary relief of injunction. It has been further pleaded that the present suit filed by the plaintiffs is not maintainable and the said suit has been filed in connivance with defendant No.5 who has been impleaded as party just in support of plaintiffs. It has been further pleaded that the suit of the plaintiffs is bad for mis-joinder and non-joinder of necessary parties. The defendants have denied the fact that the plaintiffs are co-sharers in respect of the land bearing khewat No.240, khasra No.23/14 measuring 4 kanals 4 marlas situated in village Rakh Jhita, Tehsil amd District Amritsar. The defendants have also denied that defendant no.5 is owner in respect of khewat No.235, khasra No.23/15 measuring 7 kanals 4 marlas. It has been specifically pleaded by the defendants that the land bearing khasra RSA No.3972 of 2009 (O&M) 4 No.23/14 is owned and possessed by defendant No.1 and the land baring khasra No.23/15 is owned and possessed by Banta Singh, father of defendant No.1. It has been further pleaded that defendant No.5 in connivance with plaintiffs had tried to grab the land of Banta Singh, father of defendant No.1, and they had also made an attempt to interfere into the peaceful possession of father of defendant No.1 due to which Banta Singh had to file civil suit for permanent injunction and said civil suit was pending in the court of Shri T.S.Bindra, Civil Judge (Junior Division) Amritsar and the order of status quo was passed regarding the said land in favour of defendants. It has been further pleaded that the plaintiffs are in connivance with defendant No.5 and have openly violated the status quo order passed by the court due to which contempt application is also pending against them. The defendants have denied the existence of passage on the Northern side of the land a pleaded by the plaintiffs. The defendants have further pleaded that the area alleged to be under passage actually is the area under ownership and possession of Banta Singh, father of defendant No.1 and plaintiffs have intentionally and willfully not filed site plan of their properties. It has been further pleaded that the site plan attached with the written statement clearly shows that the plaintiffs are having passage from the Northern side of their houses, hence, the site plan attached with the plaint is wrong. Rest of the material averments have been denied by defendants No. 1 to 4. 5. Defendant No.5 in his separate written statement has also RSA No.3972 of 2009 (O&M) 5 pleaded that the suit of the plaintiffs is not maintainable and the plaintiffs are estopped by their act and conduct to file the present suit. It has been further pleaded by defendant No.5 that the plaintiffs have not come to the court with clean hands, hence, the plaint is liable to be rejected. It has been further pleaded that the suit of the plaintiffs is bad for mis-joinder and non-joinder of necessary parties. It has also been pleaded that no threat has been given by defendant No.5 to demolish the passage. The defendant No.5 has admitted the fact that there is existing a passage/common passage at the spot as pleaded by plaintiffs and the said passage is being used by the plaintiffs and defendant No.5 for their ingress and outgress. The defendant No.5 has admitted the fact that passage in dispute is leading to the house of the plaintiffs. Rest of the material averments have been denied by defendant No.5." On the pleadings of the parties, the following issues were framed:- “1.Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 2.Whether the suit is legally not maintainable under the law?OPP 3.Whether the plaintiff is estopped by his own act and conduct from filing the instant suit?OPD 4.Whether the plaintiff has not come to the court with clean hands?OPD RSA No.3972 of 2009 (O&M) 6 5.Whether the suit is bad for mis-joinder and non-joinder of necessary parties and cause of action ?OPD 6. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs had filed the suit for permanent injunction that the defendants be restrained from demolishing the passage in dispute. It has been noticed by the Courts below that as per Khasra Girdwari (Exhibit P2), there was a passage in existence as alleged by the plaintiffs. As per the site plan placed on record by the appellant (Exhibit DY), there was a phirni near khasra No. 23/14 and 23/15. Khasra No.23/15 is owned by Banta Singh as a co-sharer. It has been observed by the Additional District Judge that as per Exhibit D1, entry in the khasra girdawari qua Khasra No.23/15, a gair maursi house as well as passage has been depicted. The learned trial Court in the judgment has observed that appellant-Harbhajan Singh claimed to be in exclusive possession of Khasra No.23/13 but this claim was not believed in earlier litigation by the District Judge Amritsar in judgment (Exhibit PX). Appellant- Harbhajan Singh admitted that Khasra No.23/14 was jointly owned by Amrik Singh, Lal Singh and Kuldip Singh,whereas, Lal Singh was in exclusive possession of the said khasra number. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that passage existed at the spot, as alleged by the plaintiffs. The said finding of fact cannot be interfered by this Court in appeal. RSA No.3972 of 2009 (O&M) 7 No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 03, 2009 arya