R.S.A. No.3356 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No.3356 of 2010 (O&M) Date of decision : 23.8.2010 ... Shri Krishan ................Appellant vs. Smt. Savitri and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Pradeep Parkash Chahar, Advocate for the appellant ... K.C. Puri, J. There is a delay of 16 days in filing the present appeal. The same stands condoned on the grounds mentioned in the application. This is a regular second appeal directed by the plaintiff- appellant against the judgment dated 29.4.2010 passed by Sh.D.R. Chalia, Additional District Judge, Jhajjar, vide which the appeal preferred by the plaintiff-appellant against the judgment dated 16.3.2009 passed by Sh. Narinder Pal, Civil Judge (Junior Division), Bahadurgarh, was dismissed. Briefly stated, the case set up by the plaintiff in the plaint is that he is permanent resident of village Chhara, Tehsil Bahadurgarh, District Jhajjar, and is owner in possession of a residential house R.S.A. No.3356 of 2010 -2- constructed over the land measuring 175 sq. yards. The house consists of four rooms, kitchen and open court yard shown by letters ABCD in the site plan. The plaintiff has a open space also in front of his house. The house is bounded as under:- East : House of Ram Kishan and street West: Street South: Street North: House of Ramkishan and others The plaintiff has inherited the house from his father in the family partition. The plaintiff was born and brought up in the house in question as the ancestors of the plaintiff were all permanent resident of village Chhara and so the taxes and electric connection are also in the name of the plaintiff. It is stated that the defendant is the neighbour of the plaintiff, who is notorious by nature. The house of defendant is quite adjacent to the house of plaintiff. The defendant has tried to assert his right on the suit property and tried to fix the door in the open space of the plaintiff with mala fide intention. The plaintiff made requests not to interfere in the peaceful possession of the plaintiff in respect of the suit property, but the defendant threatened the plaintiff and tried to damage the wall situated between the house of the defendant and suit property. The plaintiff approached the police and on intervention of the police, the defendant entered into a compromise with the assurance that he will not interfere or interrupt in the peaceful possession of the plaintiff by fixing the door. It is alleged by the plaintiff that thereafter the defendant alongwith 3-4 persons came there and attempted to fix the windows R.S.A. No.3356 of 2010 -3- in the wall between the two houses despite the assurance and written compromise, but defendant was not allowed to fulfill his illegal desire with the intervention of the respectable. Plaintiff further submitted that defendant is powerful person and is having muscleman and has threatened plaintiff many times. Hence, the plaintiff filed the suit against the defendant for seeking a decree of permanent injunction. Defendant filed written statement taking preliminary objections of locus standi, maintainability and that suit is false, fictitious and vexatious. On merits, the defendant submitted that plaintiff has given wrong site plan and wrong dimensions of his house and the site marked by letters ABCD shown in red colour is not the house of the plaintiff, but the same is part and parcel of the street which has been paced by the Gram Panchayat as pucca one by laying down the bricks and plaintiff has no concern with the ownership and possession of the site in dispute and that plaintiff has made an encroachment of the area of about 6.5 feet of land in his house towards its Southern side, which was part of the street and the Southern street was parallel to wall AB upto the street lying towards the West of the house of the plaintiff; that rainy water and waste water of the house of the defendant is being discharged in the site in dispute for the last several decades. It has been denied that site in dispute was inherited by the plaintiff from his ancestors. Defendant has every right to fix the doors, windows etc. in wall AB and the plaintiff has no legal right to interfere in the construction work of the defendant and dismissal of the suit was prayed for. Replication to the written statement was filed by the R.S.A. No.3356 of 2010 -4- plaintiff, controverting the contents of written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether the defendant has no right or authority to interfere in the peaceful possession and to fix a door in between the house of the defendant? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPP 4. Relief. The plaintiff examined PW-1 Sat Narian, PW-2 Hazari Lal, and he himself appeared as PW-3. The defendant examined DW-1 Kewal Singh, DW-2 Permod, DW-3 Mahipal, DW-4 Naresh Kumar and closed the evidence after tendering certain documents. In rebuttal, plaintiff tendered document and closed the evidence. Learned trial Court decided issue No. 1 against the plaintiff and in favour of the defendant and held that suit property is part and parcel of street. Issues No. 2 and 3 were decided against the defendant. However, in view of finding on issue No.1, the suit of the plaintiff was dismissed vide judgment dated 16.3.2009 passed by Sh. Narinder Pal, Civil Judge (Junior Division), Bahadurgarh, Feeling dissatisfied with the above said judgment, the plaintiff filed the Ist appeal and the same was dismissed by Sh. D.R. Chalia, Additional District Judge, Jhajjar vide judgment dated R.S.A. No.3356 of 2010 -5- 29.4.2010, confirming the finding on issue No.1. Feeling dissatisfied with the judgments dated 29.4.2010 and 16.3.2009, referred to above, the plaintiff-appellant has preferred the present regular second appeal. The appellant in para No. 14 of the grounds of appeal has stated that following substantial questions of law are involved in the present regular second appeal:- i) Whether the judgments and decrees dated 29.4.2010 and 16.3.2009 passed by Ld. Appellate Court and Ld. Trial Court respectively, are a valid judgments and decrees in the eyes of law? ii)Whether the findings of both the lower Courts are not perverse and against the law and evidence on record? iii)Whether the appellant/plaintiff is not in continuos possession over the suit land since from their ancestors? iv)Whether the appellant/plaintiff is not entitled for injunction when the Assistant Collector dismissed the application under Section 7 V.C.L. Act against the appellant/plaintiff with regard to the same site in dispute? v) Whether both the lower Courts have erred in not considering the compromise between the parties regarding the disputed land in suit and defendants/respondents are not restrained to interfere in the peaceful possession of the plaintiff over the land in dispute? vi)Whether the judgments and decrees of both the Courts below are not liable to be set aside on the grounds R.S.A. No.3356 of 2010 -6- mentioned in the grounds of appeal and as per the case of the parties? In support of the abovesaid questions of law, learned counsel for the appellant has submitted that judgments of both the Courts below are perverse. Both the Courts below have misinterpreted and misread the evidence on the file. The document Mark 'X' compromise has been placed on the file. In the compromise, it is clearly mentioned that defendant cannot fix door in the open space. So, finding of both the Courts below that disputed portion ABCD is a passage, cannot be held to be valid. I have carefully considered the said submission and have also gone through the file of the case. There is a concurrent finding of fact recorded by both the Courts below that portion ABCD shown by the plaintiff in the map is a passage and the plaintiff on that account is not entitled to any injunction. It has been further observed by both the Courts below that Courts are guardian of public property and no injunction regarding passage should be granted. So, that being a finding of fact cannot be challenged in the second appeal. There is nothing on the file to show that both the Courts below have misinterpreted and misread the evidence on the file. Each and every oral as well as, documentary evidence has been thoroughly appreciated by the trial Court and re- appreciated by the Ist Appellate Court. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. The finding of fact recorded by both the Courts below to the effect that the disputed R.S.A. No.3356 of 2010 -7- property ABCD is a passage, does not call for any interference in the regular second appeal. Consequently, the appeal is without any merit and the same stands dismissed. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 23.8.2010 Judge chugh