R.S.A. No.1674 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1674 of 2010 Date of Decision:12.08.2011 Ranjit Singh ......Appellant Versus Sukhdev Singh(since deceased) through his LRs .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.H.S.Dhindsa, Advocate, for the appellant. Mr.Sukhjeet Singh, Advocate, for the LRs of the respondent. **** M EHINDER S INGH S ULLAR , J.(oral) The compendium of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record is, that Sukhdev Singh son of Nasib Singh, (since deceased) (now being represented by his LRs)-respondent-plaintiff(for brevity “the plaintiff”) filed the suit for a decree of mandatory/permanent injunction, directing Ranjit Singh son of Labh Singh- appellant-defendant(for short “the defendant”), to remove the gate and wooden small pillars(wooden killas) affixed by him in the common street, depicted in the site plan and not to raise any further construction in the street in question, inter alia, pleading that there is a common street for the personal use of the parties and nobody can change its nature. It was explained that earlier the Block Development and Panchayat Officer, vide his order dated 10.08.1999 held that the passage in question is a common street of the parties and nobody can change its nature. But the defendant has closed the said street, by affixing the gate and wooden pillars in the said common street forcibly and illegally, without any legal right. The plaintiff requested the defendant to remove the same, but in vain, which necessitated him to R.S.A. No.1674 of 2010 2 file the present suit. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of permanent/mandatory injunction against the defendant, in the manner described hereinabove. 2. The defendant contested the suit and filed the written statement, taking certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiff. The existence of the street was admitted. However, it was denied that the street in question is a common street of the parties. According to the defendant that, the plaintiff has no right, title or interest in it, which belongs to him(defendant). It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 4. The parties to the litigation, in order to substantiate their respective pleas, brought on record oral as well as the documentary evidence. 5. The trial Court, after taking into consideration the entire evidence brought on record by the parties, decreed the suit of the plaintiff, by means of impugned judgment and decree dated 22.10.2008. 6. Aggrieved by the impugned decision of the trial Court, the defendant filed the appeal, which was dismissed as well by the first Appellate Court, by virtue of impugned judgment and decree dated 14.12.2009. 7. The appellant-defendant still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 8. The appeal initially came-up for preliminary hearing before a Co- ordinate Bench of this Court (Mahesh Grover, J.) and the following order was R.S.A. No.1674 of 2010 3 passed on 28.04.2010:- “Contends that the petitioner is willing to settle the matter with the respondent provided the matter is referred to the mediation centre. The dispute is qua a street in which a gate has been affixed at Mark AB shown in the site plan. The plaintiff/respondent filed a suit for mandatory injunction seeking directions to the defendant/appellant to remove the gate fixed at Mark AB on the ground that he is owner in possession of the house shown yellow in the site plan and that there is a common street meant for both the parties and the appellant/defendant cannot covert the same for personal use. A settlement was also entered into with the intervention of the BDPO and the parties agreed that the appellant shall affix the gate but the nature of the street shall remain intact. The appellant, however, continued to tether the cattle in the street obstructing the right of the respondent. The Court has granted injunction to the respondent. These are pure questions of fact which cannot be determined in a regular second appeal, more so when no perversity has been shown and no substantial question of law is shown to have arisen. The appeal therefore warrants dismissal but notice of motion is issued for 18.8.2010 only because of the contention of the learned counsel for the appellant that he is desirous of settlement with the respondent.” 9. It is not a matter of dispute that thereafter, despite the deep persuasion of the learned counsel, the parties are adamant not to settle the dispute and their learned counsel projected their inability in this relevant connection. 10. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal in this regard. 11. As is evident from the record that, having perused the oral as well as the documentary evidence brought on record, the trial Court has recorded a finding of fact that the street in question is a common street of the parties, for all intents and purposes and the defendant has got no right, title or interest, to obstruct the user of the street in question by the plaintiff, by affixing gate and wooden pillars. Not only that, the findings of the trial Court were upheld by the first Appellate Court, by way of judgment and decree dated 14.12.2009, which in substance is, as R.S.A. No.1674 of 2010 4 under:- “As per the record, the respondent/plaintiff has filed a suit for mandatory injunction directing the appellant/defendant to remove the gate fixed at mark AB on the ground that he is owner in possession of the house shown yellow and there is a common street meant for both the appellant and the respondent. The appellant cannot covert the same for personal use. The dispute arose between the parties and BDPO settled the dispute and passed the order that street is common and nobody can change its nature. The perusal of Ex.P-11 shows that both the parties agreed that Ranjit Singh shall open the gate of street and nature of street will remain intact. Ranjit Singh himself has stepped into the witness box and in his cross- examination, he has admitted it to be correct that he is still tying the cattle in the street till date when he appeared in the witness box. He himself has admitted that they keys of lock remain with him which is fixed on the gate and he does not open the gate shown at mark AB for the use of the appellant. Similarly DW-2 Nibhay Singh has admitted that Ranjit Singh is tying his buffalos in the street. Though the appellant has stated that the Ld.trial court has not considered the compromise, but the statement of Ranjit Singh itself shows that he himself has violated the terms and conditions of the compromise. The appellant himself has admitted the orders passed by the BDPO, Ex.P-10, in which he has observed that street in question is common. The appellant himself has admitted that respondents have window and ventilators towards the street in question. The respondent has also right to use the street in question. The appellant cannot stop the respondent from using the street which is common. He cannot close the same by fixing the gate and he has no right to keep keys with him. The Ld.trial court has rightly observed that the appellant/defendant is apparently disturbing the use of common street by the respondent which is not permissible under law.” 12. Learned counsel for the appellant did not point out any material, much less cogent, to contend that how and in what manner, any interference is warranted in the impugned judgments and decrees of the Courts below. 13. No other meaningful argument has been raised by the learned counsel for the appellant-defendant, to assail the findings of the Courts below. All the remaining contentions, pertaining to the appreciation of evidence, now sought R.S.A. No.1674 of 2010 5 to be urged on his behalf, have already been duly considered and dealt with by the Courts below, in this relevant behalf. 14. Meaning thereby, having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the above indicated concurrent finding of facts. Such judgments, containing the valid reasons, cannot possibly be interfered with by this Court, while exercising the powers conferred under Section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-articulated decision arrived at by the Courts below, in this context. 15. Moreover, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, much-less substantial, is involved in the second appeal, in view of the law laid down by Hon'ble the Apex Court in case Kashmir Singh Versus Harnam Singh and another, 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments and decrees of the Courts below, as contemplated under Section 100 CPC, in the obtaining circumstances of the case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. August 12, 2011 (MEHINDER SINGH SULLAR) seema JUDGE