RSA No.2169 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2169 of 2010 (O&M) Decided on : 23.08.2010 Bhupinder Singh & another ... Appellants versus Rajinder Kumar & others ... Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present : Ms. Kamalpreet , Advocate for the appellants. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest? *** RAKESH KUMAR GARG, J. This is plaintiffs' second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the defendants-respondents against the judgment and decree of the trial court has been accepted and the suit of the defendants-respondents has been ordered to be dismissed. As per the averments made in the civil suit, the plaintiffs- appellants are the absolute owners in possession of plot/house bearing Khewat/Khatauni No.57/84, Khasra No.133(0-3) situated in village Rajipur (Surajpur) Tehsil Kalka District Panchkula and had constructed only one room at the said plot and remaining portion was lying vacant. There was 6' wide street on one side of the house of the appellants and there was no other passage for the ingress and egress of the appellants. On one side of the house of the appellants, the house of RSA No.2169 of 2010 (O&M) -2- the defendants-respondents is situated. The respondents had constructed a staircase on 13.06.1998, which was causing hindrance and obstruction to the appellants to reach their house. The said 6' wide street was used since long without interruption. The respondents had threatened to encroach upon the house of the plaintiffs-appellants. When they forcibly raised construction of staircase on 13.06.1998, matter was also reported to the police but no action was taken. The respondents were requested several times not to take law in their hands but they did not pay any heed. Thus, appellants filed a suit for permanent injunction that the respondents be restrained from interfering in the peaceful possession and enjoyment of the appellants over 6' wide street by raising any construction in the said street; from stopping the flow of water of the house of the appellants to the drain passing through the said street and the house bearing Khewat/Khatauni No.57/84, khasra No.133(0-3) as shown by letters ABCD in the site plan filed along with the plaint situated in village Rajipur, Distt. Panchkula and for mandatory injunction directing the respondents to remove the construction including the staircase constructed by them upon the plot/house of the respondents- appellants on the space shown by letters CEFG in the site plan. Upon notice, respondents filed a joint written statement raising various preliminary objections. The ownership of the plot/house bearing Khewat/Khatauni No.57/84, Khasra No.133(0-3) situated in village Rajipur (Surajpur) was admitted. It was further admitted that the appellants had constructed only one room at the said plot. However, it was specifically denied that the approach to the plot of the appellants was from 6' wide street shown in the site plan and it was averred that the approach to the plot was from the east where RSA No.2169 of 2010 (O&M) -3- there was a 6' wide street in front of appellant's plot from the main road. The land measuring 13 x 4' shown in the site plan marked as CEFB was purchased from Smt. Pyari Devi and was in their possession and is situated in front of the plot of the appellants and touches the 6' wide street and the same is part of Khasra No.413/136, Khewat Khatauni No.101/130. It was admitted that the respondents had constructed a staircase on their own land but denied that it prevents the appellants from approaching their plot. The said staircase falls under Khasra No.413/136, Khewat Khatauni No.101/130 purchased by the respondents from Smt. Piyari Devi and does not fall under Khasra No.133, nor cause any hindrance to the appellants to reach their plot. It was specifically denied that the appellants were using the street to reach his plot. It was denied that there was any flow of water from the plot of the appellants towards the street. It was averred that no cause of action has been occurred in favour of the appellant and dismissal of the suit was prayed for. After going through the evidence on record and hearing learned counsel for the parties, the trial court decided all the issues against the defendants and decreed the suit with costs directing the respondents to remove the construction of staircase constructed by them upon the rasta towards the plot/house of the plaintiff-appellant. Appeal against the aforesaid judgment and decree of the trial court was dismissed vide judgment and decree dated 21.04.2004 by then Addl. District Judge, Panchkula. However, order dated 21.04.2004 was set aside by this Court and the matter was remanded back to the lower appellate court for fresh decision of the Case on merits. Vide impugned judgment and decree dated 26.03.2010, the lower appellate court found no merit in the suit of the appellants RSA No.2169 of 2010 (O&M) -4- and accepted the appeal and dismissed the suit. While accepting the appeal, the lower appellate court recorded a finding that the appellants have failed to establish that their ingress and egress to plot No.133 from the area shown with letters CEFG in the site plan Ex.P-2 or ABCD shown in Ex.D1. From the documentary evidence on record including the report of local commissioner Ex.P-3, site plan Ex.P-4 and Aks Shijra Ex.PX, it was made out that the ingress and egress to plot No.133 of the appellants is from the gali sareaam on the west of their property where they had construed the room. It was also found by the lower appellate court that the respondents had led evidence to prove that the construction of staircase ABCD shown in Ex.D-1 was on a piece of land in Khasra No.413/136 measuring 13 x 4 ft. which was purchased from Smt. Piyari Devi vide sale deed dated 16.06.1990 Ex.D2. Aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, plaintiffs are before this Court in the instant appeal. Learned counsel for the appellants has vehemently argued that while passing the impugned judgment and decree, the Lower Appellate Court has misread the report of the local commissioner Ex.P-3 and the site plan Ex.P-4 submitted by him. According to the learned counsel for the appellants, it has been found that the staircase which has been constructed in the street in front of their house is located on the east in excess of 2 biswas, which is the area of ingress and egress of the plot bearing Khasra No.133 and in this way the right of passage of the appellants has been blocked after construction of the staircase by the defendants-respondents. Thus, in view of the aforesaid report, the judgment and decree passed against the RSA No.2169 of 2010 (O&M) -5- appellate court cannot be sustained. I have heard learned counsel for the appellants and perused the impugned judgment and decree of the lower appellate court as well as the report of the local commissioner as produced in the ground of appeal on the basis of which the aforesaid a rguments have been raised. The question before this Court is as to whether the staircase in question was constructed by the respondents over the 6' wide street which is used for ingress and egress of the appellants. The aforesaid question is pure question of fact, which has been decided by the lower appellate court on re-appraisal of the evidence. The Hon'ble Supreme Court of India in Gurdev Kaur and others versus Kaki and others, 2007(1) SCC 546 held that the jurisdiction of the Court under Section 100 of Code of Civil Procedure is never be that second appeal to become 'third trial on facts' or one more dice in the gamble. In this view of the matter, no interference is called for in a pure finding of fact by this Court in the present case, especially keeping in view the totality of the circumstances. No substantial question of law arises in this appeal. Dismissed. August 23, 2010 (RAKESH KUMAR GARG) sonia JUDGE