Civil Revision No.2687 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2687 of 2011(O&M) Date of Decision: September 19, 2011 Gram Panchayat of Village Dher, Tehsil Anandpur Sahib, District Ropar .....Petitioner v. Harminder Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Vipul Dharmani, Advocate for the petitioner. Mr.Vijay Lath, Advocate for the respondent. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside judgment dated 10.3.2011 passed by learned Additional District Judge, Fast Track Court, Ropar, Annexure P10, accepting appeal filed by respondent-plaintiff against order passed by learned trial Court dismissing application filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as the `Code') for ad interim injunction order by respondent-plaintiff. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Courts below. Briefly stated, respondent-plaintiff filed a suit for permanent injunction against petitioner-Gram Panchayat of Village Dher, restraining Gram Panchayat from raising construction/obstruction, in any manner, over Civil Revision No.2687 of 2011(O&M) -2- the alleged passage of respondent-plaintiff as shown by letters ABCD in the site plan attached with the plaint, which allegedly linked to the house of the plaintiff and which passes through khasra No.49 which as per jamabandi for the year 2006-07 is owned by petitioner-Gram Panchayat. Plea has been taken that there is no other way for going to the house of the plaintiff and that they had been using the same for the last so many years. On the same facts an application under Order 39 Rules 1 and 2 read with Section 151 of the Code for injunction order was also filed. On notice being issued to petitioner-defendant, written statement as well as reply to the application has been filed by taking the plea that respondent-plaintiff is neither owner nor in possession of khasra No.18R/16/1(5-13) as alleged by him. It is also denied that any passage is in existence in khasra No.49 belonging to Gram Panchayat. Rather plea has been taken that there is a separate passage in existence as shown in site plan filed by the respondents marked with letters `ABCDEF'. Learned trial Court dismissed the application for ad interim injunction order filed by respondent-plaintiff. However, on appeal filed by respondent-plaintiff, learned Additional District Judge, Ropar by accepting the said appeal reversed the order passed by learned Civil Judge. It has been vehemently contended by learned counsel for the petitioner-Gram Panchayat that as per Aks Musavi prepared by revenue authorities, khasra no.49 belongs to petitioner-Gram Panchayat, where school building is already in existence and that the funds have been sanctioned by the State Government for constructing boundary wall of the school building and, however, respondent-plaintiff is making obstruction in the development activity of the school without any right. It has been Civil Revision No.2687 of 2011(O&M) -3- contended that there is no passage through the said khasra number for going to the house of respondent-plaintiff and rather the passage is in existence through property owned by father of respondent-plaintiff as has been shown in Aks musavi and as has been shown in the site plan filed by petitioner- Gram Panchayat. It is further contended that learned Additional District Judge has placed reliance on the report of Local Commissioner, who reported that some kachcha pagdandi (rough path) is in existence through khasra no.49 and, however, merely on that ground it cannot be said that respondent-plaintiff has acquired any right of easement by prescription or easement by way of necessity. It has also been contended that no portion of the property is owned by present respondent-plaintiff and rather the property is owned by his father and brother and rather in litigation between him and his father, it was held that he is not owner of any property. On the other hand, it has been contended by learned counsel for the respondent-plaintiff that he has been using rasta through khasra no.49 for the last so many years and that there is no way for going to the house of the plaintiff except through khasra no.49. There is no dispute that khasra no.49 is owned by petitioner- Gram Panchayat. A school building is in existence in the said khasra number and a boundary wall is to be constructed as per funds sanctioned by the Government to the Gram Panchayat. So far as alleged path for going to khasra nos.25, 16/1, 16/2 and 16/3 are concerned, it has been prima facie shown that all these khasra numbers are owned by father and brother of present respondent-plaintiff and none of the said khasra numbers is owned by him. Moreover there is a rasta for going to the said khasra numbers towards south west of the said khasra numbers which goes upto the main Civil Revision No.2687 of 2011(O&M) -4- road abutting the village, as has been shown in Aks Mausavi. No rasta has been shown in khasra no.49. Even if as per report of Local Commissioner such kachcha pagdandi has been created in khasra no.49 illegally by respondent-plaintiff, it cannot be said that he has acquired any right of easement by prescription or by way of necessity to use the said passage. Order passed by learned trial Court has been set aside by learned first appellate Court without giving any cogent reasons. Hence, in view of these facts, the present revision petition is accepted. Impugned order passed by learned Additional District Judge, Ropar, is set aside. As a consequence thereof, order passed by learned trial Court dismissing the application for ad interim injunction order filed under Order 39 Rules 1 and 2 read with Section 151 of the Code by respondent- plaintiff stands restored. However, it is made clear that nothing observed in this order shall be having any bearing on the decision of this case by learned trial Court on merit. 19.9.2011 (Ram Chand Gupta) meenu Judge