R.S.A. No.2969 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2969 of 2005 Date of Decision:28.11.2008 Harchand Ram and another .....Appellants Vs. Kailash Chand and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Amit Jain, Advocate for the appellants. Mr. Sanjay Vashisth, Advocate for respondent No.1. **** JUDGMENT HARBANS LAL, J. This appeal has been directed against the judgment/ decree dated 5.5.2005 passed by the Court of learned Additional District Judge, Narnaul whereby he dismissed the appeal preferred against the judgment/ decree dated 25.1.2001 rendered by the Court of learned Civil Judge (Junior Division), Narnaul vide which he decreed the suit for permanent injunction restraining the defendants permanently from opening any door, window etc., towards the suit land or to place any articles therein or to use it as yard/ `Sehan' of their shop. The facts which led to the filing of the suit are that the plaintiff is in possession of shop at New Mandi at Narnaul as tenant under Chiranji Lal, Chhotte Lal. There is open space in front of his shop marked with letters ABCD shown in red colour in the site plan. This open space was being used by the predecessor-in-interest of the plaintiff for the purpose of R.S.A. No.2969 of 2005 -2- loading/ unloading of goods. The defendants who have their two shops in the eastern wing of the same locality, want to open gate towards the disputed land without any right. As per precedent and conditions imposed upon the owner of the shop in the above mentioned Mandi, none is entitled to construct any varandah or open doors, windows upto 25 feet from their shops. That before taking possession of Shop No.30, which is a part of shop No.29, it was owned and possessed by Ramjasmal, who had given it to Banwari Lal in their family settlement. Banwari Lal sold the shops to Bhimsen Saraaf, who further sold it to his (plaintiff) landlord Chiranji Lal and Ravinder Kumar in the year 1971. In their family partition, Chiranji Lal gave it to Kusumlata widow of Mahaveer Parsad. The defendants were requested several times to admit the claim of the plaintiff, but it went unheeded. On these allegations, the suit has been filed for permanent injunction. In their joint written statement, the defendants have alleged that the plaintiff has not shown the boundaries of the suit land as per correct situation. There are three shops of Harchand Rai - defendant in the eastern wing of the New Mandi. Their doors open towards Western Side. Thus, he uses the shops from both sides. That since the disputed land marked ABCD exists in front of his shops, so it has been used by him since long and has placed his drums of Mobil-oil, bricks, rims and tyres of trucks etc. As alleged, neither the plaintiff nor his predecessor-in-interest had used the suit land for loading/ unloading. That on the disputed land, there are residential houses, whose doors/ windows open towards the southern side of the yard. Ram Jasmal had never been the owner of the shop as alleged by the plaintiff, though it was owned and possessed by Bhimsen and Sunder Lal. R.S.A. No.2969 of 2005 -3- That suit land has been purchased by the defendants and thus, the plaintiff has no right to file the suit. The following issues were framed:- 1. Whether defendants are not entitled to open the doors and windows towards the disputed land ABCD as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether plaintiff has no locus standi to file the present suit? OPD 4. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit in the terms as noted supra. Feeling aggrieved therewith, the defendants went up in appeal, which has been dismissed by the First Appellate Court. Feeling undaunted and dissatisfied therewith, the defendants have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the records as well as the findings returned by both the Courts below with due care and circumspection. Mr. Amit Jain, Advocate appearing on behalf of the appellants urged with great eloquence that the appellants were entitled to open doors/ windows towards the disputed land and to place the articles therein and in proof of this fact, they have adduced overwhelming evidence, whereas the evidence adduced by the plaintiff/ respondent is contradictory in itself. He further puts that the orders passed by the Nazim are of administrative nature and that being so, these could not be looked into. Furthermore, as per the R.S.A. No.2969 of 2005 -4- Local Commissioner's report, the appellants were found in occupation of the land in dispute. The Courts below have further gravely erred in holding that the suit is within limitation though the same is barred by limitation in view of the Local Commissioner's report. In these premises, the findings returned by both the Courts below are liable to be reversed. To overcome these submissions, Mr. Sanjay Vashisth, Advocate representing respondent No.1 argued that the findings returned by both the Courts below being based on voluminous documentary evidence cannot be faulted with. I have well considered the rival contentions. The following substantial question of law arises for determination by this Court:- “Whether the orders passed by the Nazim which are of administrative nature, could be held binding on the appellants? As is borne out from Ex.D.2, the site plan, there was no window/ door opening towards the western side. This document depicts that the land in dispute was left as open space. A chabutra as well as tin- shed exist therein. A glance through Ex.P.27, the copy of the judgment dated 29.4.1966 coupled with Ex.P.7, the site plan would reveal that when shop No.1 and 2 fell to the share of Permanand (vendor of defendant), the alleged doors were closed. Thus, it is manifestly clear that in the year 1966 there was no door or window towards the southern side or the suit land. As established on the record, the land in dispute is a public place. The predecessor-in-interest of the defendants were not allowed to open the doors/ windows towards the disputed land. As per the order of Nazim as well as Chief Engineer, Narnaul, the suit land was left open for the purpose R.S.A. No.2969 of 2005 -5- of loading/ unloading of goods, so that the business of owner of shop No.29 and 30 may not be adversely affected. The plaintiff Kailash Chand is running his business in Shop No.30 in front of which, the suit land exists. Thus, if the defendants are allowed to use this land, running of business in the said shop would be rendered difficult. A person cannot be permitted to open doors/ windows in the public place unauthorisedly. The Nazim was obligated to watch the interest of the public. As such, the order passed by the Nazim though it is of administrative nature is binding upon the appellants. Accordingly, the substantial question of law stands determined. No other point has been urged or agitated by either counsel. In the result, the findings returned by both the Courts below are not liable to be disturbed. Sequelly, this appeal being bereft of any merit is dismissed. November 28, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No