R.S.A. No. 4004 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4004 of 2008 (O&M) Date of decision: 27.04.2009 Payare Lal and another ....appellants versus Dharam Singh and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. P.R. Yadav, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 30.4.2008 passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/respondents has been partly decreed. The plaintiffs brought a suit for injunction restraining the defendants from raising any water tank or any other constructions as also from changing the nature of the suit land, and blocking the ingress and egress of the plaintiffs' house, or dispossessing or ousting the plaintiffs from the suit property. The plaintiffs sought the relief on the basis that the land in dispute was belonging to the proprietors where the doors of houses opened. The suit was contested. R.S.A. No. 4004 of 2008 (O&M) -2- Though the learned trial Court dismissed the suit, the learned lower appellate Court has been pleased to partly decree the suit by passing the following order: - "During arguments, learned counsel for respondents contended that appellants did not allow respondents to construct a khel in terms of aforesaid writing dated 6.7.2004 Ex. D4/1. But at the same time, on asking of the court, he after consulting one of the respondents present in the court on the day of final hearing of appeal told distance of about 10 meters between house of Tara Chand appellant and existence of an old well as per site plan. PW2/A over the suit property. Accordingly, once Tara Chand appellant disputed his knowledge regarding contents of writing Ex.D4/1 which interalia also suggests construction of a khel/water tank after maintaining minimum distance of 4-1/2 feet from his house towards existing old well, it shall rather be in the interest of justice of the proposed khel (water tank) is constructed after leaving a distance of atleast 10 feet so that with drinking of water by animals from such khel, no inconvenience or nuisance may be caused to Tara Chand appellant and his family members while residing in their house, also having an entracne thereto through the suit property. Site plan Ex. PW2/A also shows existence of houses of other persons around the suit property. Entrance in the form of verandah to the houses of plaintiffs from the suit property has not been disputed at bar on behalf of learned counsel for respondents. This being so, there is no legitimate reason to deny formal entrance of plaintiffs and his family members to their houses through the verandah abutting the suit property despite the fact that they were also availing facility of other entrance to the houses R.S.A. No. 4004 of 2008 (O&M) -3- from the western side through killa (plot) no. 43. In view of the aforesaid, appeal deserves part success and the same is accordingly allowed partly by restraining respondents from preventing appellants and their family members for egress and ingress to their houses through the suit property and further from making any khel/water tank within a distance of 10 feet from the house of Tara Chand appellant towards old wall, existing over the suit property. To this extent, the appeal stands allowed with no order as to costs. Decree sheet be prepared and file be consigned to records after due compliance." Thus, it would be seen that the appellants have been permitted to construct khel/water tank beyond a distance of 10 feet from the house of Tara Chand and towards the old wall, existing over the suit property. The learned counsel for the appellants contends that this appeal raises the following substantial question of law: - "Whether the judgment and decree passed by the learned lower appellate Court is outcome of mis-reading of evidence, and the relief granted is beyond the pleadings of the plaintiffs set up in the suit, thus, perverse? In support of the substantial question of law, the learned counsel for the appellants contends that the learned lower appellate Court erred in law in giving the right of ingress and egress to the plaintiff/respondents to the common land, though they had other openings of their houses, leading to the street. Therefore, the judgment and decree passed by the learned lower appellate Court is perverse being outcome of misreading of evidence. In support of this contention, the learned counsel for the appellants has placed reliance on the judgment of R.S.A. No. 4004 of 2008 (O&M) -4- the Hon'ble Supreme Court in Justiniano Antao and others Vs. Bernadette B. Pereira, AIR 2005 Supreme Court 236, wherein the Hon'ble Supreme Court has been pleased to lay down that under what circumstances, the persons can claim right of prescription. This judgment is totally mis-conceived, as it is not the case of right on the basis of prescription. Plaintiff/respondents have already opening to the common purpose land, in which they also have ownership right being proprietors. There was no bar for them to use the said opening for ingress and egress to their house. The proprietors have been permitted to raise construction, khel/water tank by leaving area of 10 feet in front of the hosues of plaintiff Tara Chand, for ingress and egress. The judgment and decree passed by the learned lower appellate Court cannot be said to be outcome of mis-reading of evidence, as contended, rather substantial justice has been done. The substantial question of law raised is answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge April 27, 2009 R.S.