RSA No.1784 of 2011 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: April 25 , 2011 RSA No. 1784 of 2011 Mohinder Singh and another .....Appellants Versus Surinder Singh and another .......Respondents RSA No. 1785 of 2011 Mohinder Singh and another .....Appellants Versus Surinder Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Bhag Singh,Advocate for the appellants (in both the appeals) **** SABINA, J. Vide this judgment, the above mentioned two appeals bearing Nos. RSA 1784 of 2011 and 1785 of 2011 would be RSA No.1784 of 2011 2 disposed as they have arisen out of one suit. Plaintiffs had filed the suit for mandatory injunction directing the defendants to close the outlet at point `X' and rain water discharge pipes and window at point `Y' and `Z' and to remove the projection from point `P' and `Q' as shown in the site plan. Further relief of permanent injunction was sought that the defendants be restrained from demolishing the iron gate of the plaintiffs shown in the site plan The case of the plaintiffs, in brief, was that they were owners in possession of house marked by letters `ABCD' in the site plan along with portion marked `AEFG'. The plaintiffs had purchased the suit property from Dalbir singh and Jasbir Kaur vide sale deed dated 3.1.2002 for a consideration of ` 80,000/- along with the passage. Plaintiffs had raised construction over 7 marlas of the suit land and the remaining 3 marlas of the land purchased by the plaintiffs was lying vacant and was being used as a Courtyard and iron gate had been affixed at point `EF' (as shown in the site plan). The passage was used for approaching the main street. The defendants had no concern with the suit property. However by taking advantage of the absence of the plaintiff no.1, defendants had raised projection at point `P' (as shown in the site plan) and had also opened window at point `Z' (as shown in the site plan) and had put two pipes for discharging rainy water at point `X' and `Y' (as shown in the site plan) and had constructed projection towards eastern side of the house of plaintiffs at point `Q' (as shown in the site plan). Defendant No.2, in his written statement, averred that the plaintiffs had no right, title or interest in the passage in dispute. RSA No.1784 of 2011 3 Defendant No.2 had purchased the property from its owner Mehar Chand, who had got the site plan sanctioned from the Municipal Committee, Naraingarh on 29.9.1997. Defendant No.1 had fixed the pipe at point `X' (as shown in the site plan) and pipe for discharge of rainy water. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled for decree of mandatory injunction as prayed for?OPP 2. Whether the plaintiffs are entitled for decree of permanent injunction as prayed for?OPP 3. Whether the suit of the plaintiffs is not maintainable?OPD 4.Whether the suit of the plaintiffs is bad for non joinder and misjoinder of necessary parties?OPD 5.Whether the plaintiffs have no cause of action to file the present suit?OPD 6. Relief” The Additional Civil Judge (Senior Divison) vide judgment and decree dated 3.9.2010 partly decreed the suit of the plaintiffs qua relief of mandatory injunction directing the defendants to remove the projection from point `P' and `Q' (as shown in the site plan) and cantilever was decreed. It was further held that no doors or windows could be opened towards the passage. Plaintiffs were restrained from affixing an iron gate to the exclusion of other qua the passage in dispute. Aggrieved by the said judgment and decree, defendant No.1 preferred an appeal. Plaintiffs also preferred a separate appeal RSA No.1784 of 2011 4 challenging the judgment and decree passed by the trial Court. Vide separate judgment and decree dated 4.3.2011, the Additional District Judge dismissed the appeal filed by the plaintiffs and allowed the appeal filed by defendant No.1 and held that all the parties were entitled to use the passage peacefully. Hence, the present appeals by the plaintiffs. After hearing the learned counsel for the appellants, I am of the opinion that both the appeals deserve dismissal. In order to substantiate their case, plaintiffs placed reliance on sale deed dated 3.1.2002. As per the same, plaintiffs had purchased 10 marlas of land bearing khasra No. 137//10/13(8-0). It is also mentioned in the sale deed that the plaintiffs would be entitled to use 11 feet wide passage for ingress and outgress purposes. It has been observed by the learned Additional District Judge that the plaintiffs No.1-Mohinder Singh, while appearing in the witness box as PW4, during his cross-examination, admitted that houses of defendants No. 1 and 2 were already in existence before he purchased portion `ABCD' in the year 2002. PW2 Pal Chand, in his cross -examination, admitted that the houses of the defendants were in existence prior to the purchase of the property by the plaintiffs. Defendant no.1 had not raised any new construction after the purchase of the house by him. The windows, door etc. of the defendants were in existence prior to the year 2002 i.e. when the portion marked `ABCD' was purchased by the plaintiffs. He also admitted that the passage in question fell within the limits of Municipal Committee and had been made by it. In these circumstances, the suit filed by the plaintiffs was liable to fail as RSA No.1784 of 2011 5 they had failed to establish that the passage in dispute exclusively belonged to them. A perusal of the site plan shown, during the course of arguments by the learned counsel for the appellants, reveals that the passage in dispute is on the northern side of the house of the plaintiffs. The house of the defendants adjoins the passage on the western side. The passage leads from the house of the plaintiffs to main street. In these circumstances, all the parties are entitled to use the passage in dispute marked with letters `AEFG' in the site plan peacefully. Plaintiffs had failed to establish that they had purchased the passage in dispute for their exclusive use. Plaintiffs had only purchased the property marked `ABCD' in the site plan measuring 10 marlas, and in order approach the main street, they could use the passage in dispute. No substantial question of law arises in these appeals. Dismissed. ( Sabina ) Judge April 25,2011 arya