RSA No.1708 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1708 of 2007(O&M) Date of Decision: 23.11.2009 Hoshiar Singh ....Appellant Versus Sona Devi & Ors. ....Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present:Mr.Sanjiv Gupta, Advocate for the appellant. Mr.L.N.Verma, Advocate for the respondents. * * * Sabina,J.(Oral) Plaintiff Mahavir Singh and Hoshiar Singh filed a suit for permanent injunction restraining defendants Jaggu, Sarjit, Ram Singh and Ram Kumar from interfering in their peaceful possession forcibly, illegally or any other manner. Suit of the plaintiffs was dismissed by the trial court vide judgment and decree dated 19.05.2003. Appeal filed by the plaintiffs against the said judgment and decree was dismissed by learned Additional District Judge, Sirsa vide judgment and decree dated 22.01.2007. Hence, the present appeal by the plaintiff no.2. Brief facts of the case, as noticed by the lower Appellate Court in paras 2 and 3 of its judgment read as under: RSA No.1708 of 2007(O&M) 2 “2. The case of the plaintiffs before the trial court was that the plaintiff no.1 and his brothers Devki Ram and Hari Singh are owners in cultivating possession of the land measuring 19 kanals, 15 marlas comprised in khewat No.86, Rect. No.77, Killa No.11(8-0), 12/1(2-16), Rect. No.78, Killa No.7/2 (0-19),15(8-0). Like wise, the plaintiff no.2 Hoshiar Singh and his brothers Dunger Ram, Bhoor Dutt are owners in possession of land 6 kanals, 8 marlas land comprised in khewat No.117min, Rect.No.78 killa No.14(6-8) as per jamabandi for the years 1995-96 of village Khari Surera; that the defendants are strong head persons. They have their land in the revenue estate of village Kishanpura situated towards the Western side of the land of the plaintiffs as shown in Akshizra of village Khari Surera attached with the plaint. The defendants have no right title or interest to interfere in the above mentioned land of the plaintiffs. In the consolidation proceedings, no passage was ever left through above mentioned land of the plaintiffs. Nor the defendants have ever moved any application before the competent court for the sanction of the passage through the land of the plaintiffs but even then the defendants in order to approach their land situated in the revenue estate of village Kishanpura want to get a passage on the Northern Killa line of Rect. no.78 killa no.14 and 15 and Rect. No.77 killa no.11 and 12/1. They threatened to interfere in the ownership and possession of the RSA No.1708 of 2007(O&M) 3 plaintiffs and to destroy their crops standing in the aforesaid killa numbers. The plaintiffs requested the defendants not to do so but to no use. Therefore, the plaintiffs filed the suit praying for a decree of permanent injunction restraining the defendants from interfering forcibly and illegally or in any manner in the ownership and cultivating possession of the plaintiffs over the land mentioned above (hereinafter called land in dispute). The plaintiffs also prayed for permanent injunction restraining the defendants from creating any passage through the land in dispute. 3. The defendants no.1 to 4 appeared and filed their written statement contesting the suit on the grounds that the plaintiffs have got no right to file the suit; they have not come to the court with clean hands; that they have suppressed/concealed the fact of earlier litigation in respect of the Rasta through the land in dispute; that in the first round of litigation Kanshi Ram and Jaggu Ram sons of Bharu Ram, Maman son of Gumana alias Khumana had filed suit No.623 of 1973 of permanent injunction against Bal Ram, Buti Ram sons of Hardayal and Smt.Ram Payari wife of Nathu and in that suit they claimed that they have acquired a right of passage through the land in dispute as easmentary right. They sought a decree of permanent injunction restraining the defendants from causing any interference in their use of passage; that the suit of the plaintiffs was dismissed by the RSA No.1708 of 2007(O&M) 4 then SJIC, Sirsa vide judgment and decree dated 30.11.1978. The plaintiffs of that suit filed the appeal which was allowed by the then learned District Judge, Sirsa by means of judgment and decree dated 20.7.1979. Consequently, that suit was decreed and defendants of that suit were restrained from causing any interference in the easementary right of passage of the plaintiffs. The defendants of that suit filed the regular second appeal which was dismissed by Hon'ble High Court by means of judgment dated 27.8.1979. Though the earlier decision in the first litigation became binding on the parties of that suit and their successors in interest but even then Devi Lal, Hari Singh and Mahabir Singh sons of Shri Sheo Chand filed another suit against Kanshi Ram, Jaggu, Daulat Ram son of Bharu Ram and one Moman Ram seeking permanent injunction restraining defendant of that case from interfering into the possession of land of killa nos.11, 12, 19/2, 20 of Rect. No.77 killa no.7/2, 15 of Rect. No.78. Dev Lal etc had claimed themselves to be transferees of the previous owners of that land; that suit i.e. Civil Suit No.723 dated 11.9.1979 was dismissed with costs by the court of the then SJIC, Sira vide judgment and decree dated 14.11.1998. Devi Lal and others (the plaintiffs of that suit) filed appeal against the judgment and decree dated 14.11.1981; that appeal was dismissed by the court of the then learned District Judge, Sirsa vide judgment and decree dated 19.5.1983. Devi Lal etc RSA No.1708 of 2007(O&M) 5 including Mahavir Singh(present plaintiff No.1)filed RSA before the Hon'ble High Court. The RSA No.1715 of 1983 was pending at the time of the filing of the present suit but now that RSA has been dismissed vide order dated 17.112.2003; the defendants further pleaded that the suit of the plaintiffs was barred by principle of resjudicata; that the suit was false, frivolous, vexatious and was liable to be dismissed with special costs under Section 35-A CPC; that the plaintiffs have not complied with the provisions of Order 7, Rule 1-J CPC; that the plaintiffs have no cause of action to file the suit; that the defendants have been using the passage through middle line of killa no.7/2 and 14, 6 and 15 of Rect. No.78 and also alongwith the Northern side of killa no.11 and 12 of Rect. no.77 as easementary right since long. With these averments, the defendants no.1 to 4 prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed by the trial court 1.Whether there is no passage as alleged?OPP. 2. Whether the suit of the plaintiff is hit by the principle of resjudicata?OPD. 3. Relief.” Learned counsel for the appellant has submitted that the dispute was only with regard to the passage, which was in existence in the suit property. Learned counsel for the appellant has further RSA No.1708 of 2007(O&M) 6 submitted that so far as the passage was concerned, the defendants could use the same and the plaintiffs would not stop the defendants from using the passage which was already in existence. However, the defendants were not entitled to interfere in the other land of the plaintiffs. The learned counsel for the respondents has submitted that the submissions made by the learned counsel for the appellant were acceptable to him. The defendants had no intention to interfere in the possession of the other land of the plaintiffs. The defendants only wanted to use the passage which was already in existence in the suit land as has already been settled in the previous litigation between the parties vide judgment and decree dated 20.07.1979. Both the counsel for the parties have submitted that the suit of the plaintiffs for permanent injunction was, thus, liable to be decreed qua the remaining land except the passage in dispute which was already in existence as had been settled in the earlier litigation between the parties. In view of the statements made by the learned counsel for the parties this appeal is partly allowed. The impugned judgments and decrees of the courts below are set aside. The suit of the plaintiffs is partly decreed to the effect that the defendants are restrained from interfering in the land of the plaintiffs. However, suit of the plaintiffs qua passage in dispute is dismissed and the defendants are at liberty to use the passage which is in existence as has already been settled in earlier litigation between the parties as well as in the present litigation. RSA No.1708 of 2007(O&M) 7 This appeal stands disposed of accordingly. 23rd Nov.2009 (SABINA) Seema-II Judge