Regular Second Appeal No. 1315 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1315 of 2010 Date of decision : May 13, 2010 Shri Bhagwan and another ....Appellants versus Ishwar Singh and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms Sharmila Sharma, Advocate, for the appellants L.N. Mittal, J. (Oral) This is regular second appeal by legal representatives of defendant no. 2 Bhani Ram since deceased. Suit was filed by Ram Kumar who died during the pendency of the suit and respondents herein were impleaded as his legal representatives. Suit qua Shiv Charan defendant no. 1 stood dismissed. The suit was contested by defendant no. 2. Plaintiff Ram Kumar alleged that he is absolute owner in possession of plot no. 239/1 and 174 shown by letters ABCD in red colour in site plan annexed to the plaint. Defendant no. 2 and others are owners of plot no. 239/3. There is passage on eastern side of the plaintiff's plot and western side of plot of defendant no. 2 and others. Defendant no. 2 wanted to encroach upon the said passage and both the defendants also threatened to interfere in possession of the plaintiff over the suit property. Accordingly, the plaintiff sought permanent injunction restraining the Regular Second Appeal No. 1315 of 2010 -2- defendants from interfering in the possession of the plaintiff over the suit property and from encroaching upon the passage. Defendant no. 2 pleaded that plot no. 239/1 is not exclusively owned and possessed by the plaintiff but is also owned and possessed by Ram Niwas and Lal Chand who have not been made party to the suit. Defendant no. 2 is owner in possession of plot no. 239/3. Plots of the partes are lying undemarcated. In a suit filed jointly by the plaintiff and defendant no. 2, Local Commissioner was appointed and since his report went against interest of plaintiff, he has filed the instant suit to harass the defendants. Learned Additional Civil Judge (Senior Division), Rohtak vide judgment and decree dated 12.12.2008 dismissed the plaintiff's suit. However, first appeal preferred by legal representatives of the plaintiff has been allowed by learned Additional District Judge, Rohtak and suit filed by the plaintiff has been decreed restraining defendants from interfering in the possession of the plaintiff over the suit property and from encroaching upon the passage. Feeling aggrieved, legal representatives of defendant no. 2 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that the defendants never threatened to encroach upon the property of the plaintiff or over the passage and in fact the plaintiff wants to encroach upon the passage. The contention cannot be accepted. Defendant no. 2 in his written statement did not plead that they never threatened to encroach upon Regular Second Appeal No. 1315 of 2010 -3- the passage or over the property of the plaintiff. On the other hand, defendant no. 2 pleaded that plot no. 239/1 is not owned and possessed by the plaintiff exclusively. In paragraph 3 of the plaint, the plaintiff specifically pleaded that defendant no. 2 wanted to encroach upon the passage and both the defendants were threatening to interfere in the possession of the plaintiff over the suit property. However, in corresponding para no. 3 of the written statement, defendant no. 2 did not even specifically deny the said averments in the plaint. There is also no averment in the written statement that plaintiff wanted to encroach upon the passage in question. Moreover, if the legal representatives of the plaintiff threaten to encroach upon the passage, the appellants may avail of any remedy available to them in accordance with law but on the basis of this contention, the appellants cannot be permitted to encroach upon the disputed passage. It has to be highlighted that existence of the disputed passage is not in question. The passage exists between the plots of the parties. The appellants have no concern with the suit property claimed by the plaintiff. Consequently, suit has been rightly decreed by the lower appellate court. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) May 13, 2010 Judge 'dalbir'