RSA No.116 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.116 of 2011 (O & M) Date of Decision: 31.01.2011 Gurpal Singh ……Appellant Versus Jagtar Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ramesh Sharma, Advocate for Mr. B. S. Bajwa, Advocate for the appellant. L.N. MITTAL, J (ORAL) Gurpal Singh-plaintiff, having failed in both the courts below, has filed the instant second appeal The plaintiff alleged that there is no Nali (drain) for discharge of water in front of his Haveli, but the defendants whose houses are situated towards south of his Haveli were bent upon to carve out drain in front of plaintiff’s Haveli for discharge of dirty water of their houses. The plaintiff accordingly sought permanent injunction restraining the defendants from carving out any drain/Nali in front of plaintiff’s Haveli. Defendants broadly denied the plaint allegations and pleaded that already there is drain in front of plaintiff’s Haveli and that drain runs towards Gurudwara Sahib. Gram Panchayat constructed RSA No.116 of 2011 (O & M) - 2 - the said drain after obtaining sanction from Block Development Panchayat Officer (BDPO). Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Baba Bakala vide judgment and decree dated 27.05.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 24.09.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Even according to plaintiff’s own case, there is street in front of his Haveli. The plaintiff’s case is that no drain for discharge of water should be constructed in front of his Haveli. There is no justification for the same. Drain has to be constructed in the street for discharge of water. The plaintiff has no locus standi to seek injunction against construction of drain in the street. On the other hand, it has come in evidence that Gram Panchayat passed resolution dated 19.09.2006 for construction of drain. Necessary sanction from BDPO was also obtained for the same. Even fund for the same was provided by the Government. Pursuant thereto, the said drain was constructed. However, the plaintiff had filled the said drain with earth. The plaintiff has no right to do so. His action of filling the drain with earth would result in spread of water in the street causing inconvenience to all concerned and also risk of some disease. It may be added that plaintiff has also not impleaded Gram Panchayat as party to the suit, although the drain has been RSA No.116 of 2011 (O & M) - 3 - constructed by Gram Panchayat. The drain has not been constructed by defendants, who are residing in the village. Learned counsel for the appellant emphatically contended that Jagtar Singh- defendant No.1 as DW-2 and Balwinder Singh-defendant No.3 as DW-5 admitted site plan Ex.P-1 produced by the plaintiff to be correct and no drain has been depicted in the said site plan and thus it was admitted that no drain is in existence at the spot. The contention is completely misconceived and misplaced. Admission of site plan Ex.P-1 as correct by the aforesaid witnesses would only mean that houses of the parties and other houses etc. have been depicted therein correctly. However, it does not mean that the drain in question is not in existence at the spot. On the contrary, the said witnesses as well as other witnesses have specifically stated that drain is in existence there, although it has been filled with earth by the plaintiff himself. The street in which the drain has been constructed is not personal property of the plaintiff. As already noticed hereinbefore, the plaintiff has no right to seek injunction against construction of drain in the street. On the other hand, Gram Panchayat has right to construct drain in street for discharge of water for the convenience of residents of the village. Moreover, plaintiff Gurpal Singh himself while appearing as PW-3 admitted that there is drain in front of his house and the said drain leads to pond near Gurudwara Sahib. The drain in front of his house was constructed by Gram Panchayat for the last about 30 years. Mohan Singh Lambardar DW-1 has also stated in cross-examination that water is not flowing in the aforesaid drain as the same has been filled with earth by the plaintiff. RSA No.116 of 2011 (O & M) - 4 - There is concurrent finding recorded by both the Courts below against the plaintiff-appellant. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal so as to warrant interference in second appeal. Defendants have led very cogent evidence whereas plaintiff has not led any cogent evidence to prove his case. Even taking the averments of the plaintiff at face value, he has no right to seek the injunction prayed for because he wants injunction against construction of drain in street, but the said street is not personal property of the plaintiff and, therefore, he cannot seek the proposed injunction. There is no illegality or perversity in the impugned judgments and decrees of the Courts below non-suiting the plaintiff. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely devoid of merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 31.01.2011 A.kaundal