RSA No.345 of 2008 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on July 29,2010. Dayagir --Appellant vs. Deva Singh and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Rajesh Chaudhary,Advocate,for the appellant Rakesh Kumar Jain, J, This order shall dispose of two appeals bearing RSA No.345 of 2008 arising out of Civil Suit No. 116-C of 2000 and Civil Appeal No. 84 dated 18.11.2004 titled as Daya Gir Vs.Deva Singh and others and RSA No.346 of 2008 arising out of Civil Suit No.125-C of 2000 and Civil Appeal No.89 dated 18.11.2004 titled as Dayagir and others Vs. Munni Devi and others. Civil Suit No.116-C of 2000 titled as Dayagir Vs. Deva Singh and others was filed by the present appellant, whereas Civil Suit No.125-C of 2000 titled as Munni Devi and others Vs. Dayagir etc was filed by the respondents. The trial Court vide order dated 24.7.2002, with the consent of RSA No.345 of 2008 (O&M) 2 the parties, consolidated both the suits and treated Civil Suit No.116-C of 2000 titled as Dayagir Vs Deva Singh and others as the lead case. Learned trial Court dismissed Civil suit No.116-C of 2000 titled as Dayagir Vs. Deva Singh and other and decreed Civil Suit No.125- C of 2000 titled as Munni Devi vs. Dayagir and others, vide judgment and decree dated 13.10.2004. The appellant Dayagir filed two appeals i.e. Civil Appeal No.84 in Civil Suit No.116-C of 2000 tited as Dayagir Vs. Deva Singh and others and Civil Appeal No. 89 in Civil Suit No. 125-C of 2000 titled as Dayagir Vs. Munni Devi and others, but both the appeals filed by the appellant were dismissed by the Addl.District Judge, Hisar vide judgment and decree dated 14.8.2007. The present appeals are thus filed by the appellant against the concurrent finding of fact recorded in both the aforesaid suits. Since learned trial Court had treated Civil Suit No.116-C of 2000 titled as Dayagir Vs. Deva Singh and others, as the lead case from which RSA No.345 of 2008 has arisen, therefore, the facts are being extracted from the said appeal. In fact, both the parties filed cross suits for permanent injunction. The present appellant filed a suit for permanent injunction against Deva Singh and others in respect of a passage. It is alleged by him that he had purchased a house from Jugti son of Smt.Dholi vide a registered sale deed dated 08.4.1964 and two biswas of land from Kitaba, the predecessor-in-interest of defendant Nos. 11 to 13, for a sum of Rs.1000/- on 14.2.1974 in respect of which a writing was executed in the Bahi of Kitab Singh in the presence of the witnesses. Dispute was with regard to RSA No.345 of 2008 (O&M) 3 gali which was claimed to be joint by the appellant which leads to Narnaund. In the written statement, the defendants had alleged that land measuring 0 kanal 16 marlas comprised in khasra No.82/9/2 was previously owned and possessed by Jugti son of Dholi and land comprised in khasra No.82/9/4 was owned and possessed by Lilu son of Rola, Kitab son of Ghasi Ram and Jita @ Jamna and Ratna sons of Rudja, Lalu son of Baru and Jugti son of Smt.Bholi had alienated land measuring 0 kanal 16 marla to plaintiff Dayagir. It was alleged that houses of Lilu, Jita, Ratna sons of Rudja were also in existence in khasra No.82. Killa No.9/2. There was a panchayat to compromise the matter between the parties in which land measuring 16 marlas situated in the northern side of killa No.82/9/4 was given to the plaintiff in lieu of land measuring 16 kanal comprised in khasra No, 82/9/2. Dimension of the land allotted to the plaintiff was 82' 6''x 50'. Dayagir had constructed his house over this land and for the purpose of ingress and outgress left a rasta but now the plaintiff wanted to carve out a rasta in between the plot of the defendants. It was further alleged that Kitaba, predecessor-in-interest of defendant Nos. 11 to 13 was owner in possession of the house which was in a dilipidated condition. It was demolished and when reconstruction was being carried out, the appellant started interfering, therefore, the present suit was filed for permanent injunction, but now they have raised construction of two rooms and a verandah. It was also alleged that the rasta in dispute is in the private land of the defendants. Both the Courts below, after appreciating the entire evidence on record have recorded concurrent finding of fact in favour of the RSA No.345 of 2008 (O&M) 4 respondents and against the appellant which are reproduced below:- “After going through the entire evidence led by both the parties an after considering the rival contentions, it is amply clear that the parties to the suit are having their residential plots and houses adjoining to each other. There is no dispute that both the parties are residing in their respective houses since long. The claim of the plaintiff is that he has constructed a house in his plot as shown in the site plan Ex.P1 in the red colour and the defendants have their plot on the eastern side of his plot arid on the southern side of the plot of the defendants, there is a street which has been shown in the yellow colour and that street is being used by him along with the defendants for ingress and outgress of his house as the same joint to a common street and further to Narnaund-Rakhi road. On the other hand, the claim of the defendants is that the plaintiff has never used such a path-way through their plot and he is bent upon, forcibly carving out a street from the middle of their plot. They have also raised the counter claim regarding the area of their plots. But first of all the claim of the plaintiff regarding the street is to be considered. Both the parties have produced contradictory plans and also produced oral evidence to support the case of their own. In such a situation, the report of the Local Commission who was appointed by my Ld. Predecessor assumes significance and could be helpful for deciding the controversy. The certified copy of this report and the site plan have been produced in evidence as Ex.P3 and P4. The original L.C.report and the site plan prepared by the L.C. are attached with the file of consolidated suit and the same are the part of records and could very well be considered in evidence in view of provisions of order 26 CPC. A bare perusal of the report and the site plan of the L.C. shows that the property of the plaintiff has been shown in red colour. On the northern side of this plot of Dayagir, a kacha rasta has been shown in yellow colour which leads to the main road on the eastern side. The L.C. has clearly shown the gate of the house of the plaintiff opening in this kacha rasta on the northern end of the house of the plaintiff. The Local Commissioner has further reported that kacha rasta existing on the eastern side of the house of the plaintiff although leads to the pakka main road but the same opens in the plot of the defendants and the defendants have only this pathway as an RSA No.345 of 2008 (O&M) 5 approach to their house. Undoubtedly, the Local Commissioner has reported t hat the open space lying in front of the house of the defendants marked JQRSK is the property which is the bone of contention between the parties because the plaintiff claims that he is using this property as a passage to his house. However, it is clear that there is nothing on record so as to show that the plaintiff has been using this property as a common passage with the defendants to approach the main road on the eastern side of his house except the oral assertions of his witnesses which are equally contradicted by the witnesses of the defendants. The claim of the plaintiff that he has an easementary right in the same by way of prescription is not established on the file as he has failed to produce any cogent evidence to establish that he is using this property as a pathway since 1974. The Bahi writing regarding two bishwas of land being purchased by the plaintiff from the father of the defer Kitab Singh on 14.2.74 for a sale consideration ofRs.1000/- Ex.P2 could not be considered for holding that the father of the defendant have agreed to allow the plaintiff to use his property as a pathway in the year 1974 while executing the Bahi writing. Although, Bahi writing was a document which was for the purchase of immoveable property more than the value of Rs.1000/- and the same required compulsory registration yet even if it is presumed that such transaction has taken place between the parties, the Bahi writing Ex.P2 does not disclosed as to which part of the land off the defendants was purchased by the plaintiff. More so, it is not the claim of the plaintiff that he has purchased the land which is claimed by him as a common passage with the defendants. The further contention of the counsel for plaintiff that the plaintiff was not having any other to approach his house and as such, he has an easementary right of necessity in the property in dispute, is devoid of any force because in view of the report of the Local Commission the plaintiff has a passage to his house from a kacha rasta which leads to the main road on the eastern side of the property in dispute. The concealment of this fact by the plaintiff in his plaint also disentitles him from the discretionary relief of injunction against the defendants. Now coming to the claim of the defendants that they have be area of 52x50' and possession and the plaintiff has encroached upon a 8' wide strip alongside the eastern side of his plot. I find that the defendants have not produced any RSA No.345 of 2008 (O&M) 6 such evidence to substantiate their case in this regard although the claim of the defendants that their house was 50' x 42' as claimed in their plot is neither contradicted nor rebutted by the plaintiff. The contention of the counsel for defendants that the plaintiff has encroached upon the property of the defendants illegally and forcibly is neither the matter in issue in the present suit nor the same could be decided in the present suit for injunction particularly when the defendants in their suit in the replication have pleaded for reserving their right to separately proceed with in the matter. Thus, the plaintiff who has failed to establish that he has, right or interest in the property of the defendants has no right to interfere in the same in any manner. So, plaintiff could not derive any benefit from Kundan Mal case (supra) Joseph case (supra) Des Raj case (supra), Naib Singh and others case (supra). Aruimign Visweswaras v/s case (supra) relied upon by his counsel. While the case of the defendants finds support from Harjit Kaur case (supra), Ram Niwas case (supra) Dev Kumar (died) through Lrs case (supra), Punjab Urban Planning & Development Authority case (supra), Rattan Dev case (supra), Tamil Nadu Housing Board case (supra), Gugan Ram case (supra), Harbans Singh and other case (supra), Mathu Injodikkaran Anthony case (supra) Ponnaiyan Pnnusarni Gounder and others case (supra), Ram Dal Dhirta Ram case (supra) & Smt. Jammna Bai case (supra) relied upon by their counsel. For the reasons, the plaintiff has failed to establish that the portion as shown in yellow colour in the site plan attached with the plaint as a joint rasta of the plaintiff and the defendants. So, issue No.1 in the lead case is decided against the plaintiff. The defendants have as detailed and described in the head note of the plaint successfully proved that they are the owners in possession of the house filed by them in the consolidated suit and, therefore, they are entitled to the decree for permanent injunction. So, both these issues are decided in favour of the defendants (plaintiffs in the consolidated suit).” Similar findings have been recorded by the first Appellate Court:- “It is pertinent to mention here that the dispute in question is whether disputed street is being used by appellants as easementary right for ingress and RSA No.345 of 2008 (O&M) 7 outgress to their land or whether the said disputed street is a part of house of contesting respondents. Learned lower court had rightly appreciated the evidence in this regard and had rightly come to the conclusion that both the parties have produced contradictory site plans and also produced oral evidence to support their case, in such a situation the report of local commission who appointed by lower court assume significance and could be helpful for deciding the controversy. It is pertinent to mention here that lower court had rightly not relied the oral evidence led by both the parties as witnesses examined by both the parties had supported the case of each other and thus, their statements can not be relied upon. So far as Ex.P1 site plan is concerned, it is contradictory to site plan Ex.D5 and Ex.D10. A perusal of report of local commission Ex.P3 and site plan Ex.P4 prepared by him show that property denoted by letters A,B,C,D,N,F,G,H,I,J & K and shown in red colour in the site plan Ex.P4 belong to appellant Dayagir and on northern side of this property a kacha passage has been shown in yellow colour with letters D,B,O,P,G,F and E and a perusal of site plan Ex.P4 further reveals that gate of the house of appellant Dayagir opens in the said kacha path. Local Commission has also shown no passage in the site existing on the southern side of the house of contesting respondents. He had shown that a vacant plot K,J,Q and S measuring 22 x 33 feet lying at the spot which is, presently being used by all the persons. Had there been any disputed street as shown in site plan Ex.P1 by the appellant Dayagir then it might have been shown by local commissioner in its site plan Ex.P4. Rather local commission had not shown any disputed street but he had shown a vacant plot belonging to contesting respondents. Thus, local commission had negitivated the plea of appellant Dayagir that there existed disputed street of 6 feet x 33 on the eastern side of house of appellant Dayagir. Since plot measuring 22 feet x 33 feet is lying vacant so it can naturally be used by all the person of inhabitants. Moreover, no gate of the appellant Dayagir open in this plot whereas gate of Munni Devi is opening in southern side of said vacant plot. There is no cogent evidence led by the appellant Dayagir that there exists disputed street towards side of his house measuring 33' 44' x 6 feet. Moreover, as per report of local commission there exists a kacha passage adjoining to the house of appellant Dayagir in which his gate opens and appellant Dayagir has not revealed this fact in his RSA No.345 of 2008 (O&M) 8 plaint as well as in his site plan placed on file. There exists a passage fur ingress and outgress to the house of appellant Dayagir which he also admitted by the witnesses namely PW1 Sadhu Ram Malik Draftman, PW2 Rati Gir and PW3 Pala Ram and this fact is also proved from site plan Ex.D5 and Ex.D10 placed on file by contesting respondents as well as site plan Ex.P3 prepared by Local Commission. Thus, the appellant Dayagir has concealed the material facts from the court and on this score appellant Dayagir is not entitled for any relief from this court. To support this view reliance can be placed on case law of Ram Singh Lambardar's case (supra) wherein it has been held that whosoever conceals the material facts from the court he is not entitled for any relief. Moreover, it is the case of Dayagir is that he had purchased 0 kanal 16 marla land comprised in Khasra No.82/9/2 vide sale deed dated 8.4.1964 and later on he exchanged the said land with 16 Marks land comprised in khasra No.82/9/4 owned and possessed by Lilu Ram, Kitaba, Jeeta Ram and Rattna because 16 Marks land abutting to his ancestral land. It is also the ease of appellant Dayagir that he had purchased 2 biswas land from Kitaba predecessor in interest of respondents vide Bahi entry Ex.P2 dated 14.2.74. Learned counsel for appellants has vehemently argued that appellant Dayagir had exchanged 16 marlas land which was situated in khasra No.82/9/4 and has purchased 2 biswas land from kitaba in order to have the access to disputed street shown in site plan Ex.P1 measuring 33' 4” x 6 feet. In this regard, it is pertinent to mention here that a perusal of Bahi entry Ex.P2 dated 14.2.1974 does not reveal that Kitaba predecessor in interest of respondents has allow the appellant Dayagir to use his property as path way in the year 1974 while executing the Bahi writing. No description of nature of land has been given in the said Bahi entry Ex.P2. Moreover, Bahi writing Ex.P2 was a document for purchase of immovable property of more than Rs.100 thus was required compulsory registration. Moreover, in Smt. Jammna Bai's case (supra) Hon'ble Rajasthan High Court has held that document executed on unstamped paper can not be admitted in evidence even for proving collateral purpose like nature and character of possession. Thus, it was in-admissible in evidence. Moreover, for the sake of arguments if this Bahi writing Ex.P2 is deemed to have transferred 2 biswas land in favour of appellant Dayagir, even then Bahi entry does not reveal that appellant Dayagir had RSA No.345 of 2008 (O&M) 9 purchased land from Kitaba predecessor-in-interest of contesting respondent for a common passage. Further more there is nothing on the file that appellant Dayagir had exchanged 16 marlas land which was 5 in Khasra No.82/9/2 of him which he had purchased from Jugti with 16 Marlas land comprised in khasra No.82/9/4 owned and possessed by Leelu Ram etc. in order to get ingress and outgress through the disputed street. Thus the said of appellant Dayagir is totally devoid of merit that he had exchanged aforesaid land in order to get the easementary right in disputed street. Learned counsel for appellants had vehemently argued that in this case site plan Ex.D5 and Ex.D10 are false documents whereas Ex.P1 of appellant Dayagir is the correct site plan. A perusal of site plan Ex.P3 as prepared by PW3 Balbir Singh Local Commissioner reveals that respondents are owners in possession of land measuring 43'2” x 33' and out of that they have constructed house on land 21'2” x 33 feet whereas appellant Dayagir had shown in his site plan as Ex.P1 the area of house of contesting respondent as shown in Ex.P1 does not tally with the site plan as prepared by Local Commissioner. Moreover, local commissioner in his report Ex.P3 has nowhere found dispute street. Thus, on this score suit of appellant Dayagir is not maintainable. To support this view, reliance can be placed on Jasbir Singh's case (supra). Moreover, the case of contesting respondent is this that they are owner in possession of land measuring 52 feet x 50 feet. In the present case main question involved is whether disputed street is part of property of respondent or not. So the area of plot of contesting respondents is not much material as the case of appellant as the case of appellant Dayagir is this the respondent are not allowing him to use the disputed street whereas the case of contesting respondent is this that appellants be restrained from interfering with their property and he further restrained from interfering into construction being raised in their plot. Thus measuring of plot of respondents as argued by learned counsel for appellant is immaterial for the decision of the case because it is not the case of appellants that contesting respondent are encroaching upon any part of their house. Since, there exist no disputed street in the house/plot owned by contesting respondent, so appellants have no right to interfere into the house/plot of the contesting respondents irrespective of the area of house/plot of the contesting respondents. Thus, the arguments advanced by learned counsel for the RSA No.345 of 2008 (O&M) 10 appellants in this regard is of no consequence. Further more, as pointed out earlier appellants had another passage on his northern side and thus can not claim right of easement on the land of respondents in view of law laid down in Chellappan Pillai's case (supra)”. Assailing the concurrent finding of fact recorded by both the Courts below, learned counsel for the appellant claimed his right over the land having been purchased from Kitaba for a sum of Rs.1000/- on the basis of Bahi entry. In this regard, it is well settled that no title in the immoveable property can be transferred without a registered sale deed/ registered document if value of the property is more than Rs.100/- and if such a document exists which is unregistered, it is inadmissible in evidence. No other point has been urged before me by the learned counsel for the appellant. In view of the above discussion, I do not find any question of law much less substantial involved in this appeal for the purpose of interference by this Court. Hence, both the appeals are dismissed but without any order as to costs. July 29,2010 (Rakesh Kumar Jain) RR Judge