RSA No.1910 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1910 of 2009 (O&M) DATE OF DECISION: 30.11.2010 **** Ram Rattan and others . . . . Appellants Vs. Sugan Chand and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.R.S. Mamli, Advocate for the appellants. Mr.S.S. Dinarpur, Advocate for the respondents. **** RAKESH KUMAR JAIN J. The defendants are in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiffs for permanent injunction for restraining the defendants from encroaching upon the 8 feet wide street in question, has been decreed. The case set up by the plaintiffs is that there is a blind private 8 feet wide gali between the houses of the parties, who happens to be closely related, on which the defendants are trying to raise construction by including the portion of the street in their house. Whereas, the case set up by the defendants is that the street is 4 feet and not 8 feet as pleaded by the plaintiffs, therefore, there is no question of any encroachment. Thus, the core question was as to whether the street is 8 feet or at the most 6 feet as ultimately suggested by the defendants. The trial Court had appointed Ms.Sheweta Shukla, Advocate as Local Commissioner, who had tendered her report (Ex.P-2) and appeared as PW5. On the basis of the said report and the other evidence available on record, a concurrent finding of fact has been recorded that the street is 8 feet wide. Aggrieved against the judgment and decree of both the Courts below, the defendants have filed present appeal in which Local RSA No.1910 of 2009 (O&M) - 2 - Commissioner was appointed by this Court vide its order dated 6.5.2009 with the following orders: - “Contends that the existing width of the street is 6 feet. Since the entire controversy centres around the width of the street, which according to the appellants is 6 feet and according to the respondents is 8 feet, it is deemed desirable that a Local Commissioner is appointed to determine the width of the street in question. Mr.Vikramjit S. Saini, Advocate, who is present in Court is appointed as Local Commissioner. He shall visit the disputed site on 16.5.2009, associate the appellants and respondents and determine the width of the street. Report be submitted before the next date of hearing. The fee of the Local Commissioner is fixed at Rs.7,000/- to be paid by the appellants. Copy of the order be communicated to the respondents. To come up on 20.7.2009” Pursuant to the aforesaid order, Local Commissioner submitted his report. Thereafter, the plaintiffs had filed Civil Misc. No.9265-C of 2009 for placing on record affidavit of Sarpanch and other members of the Panchayat to the effect that gali is 6 feet at the spot. However, the said application was withdrawn by the appellants and the affidavits were returned vide order dated 21.8.2009. While the appeal was pending, appellant No.1 (Ram Rattan) died. Learned counsel for the appellants filed an application namely Civil Misc. No.12999-C of 2009. The said application was also allowed subject to all just exceptions. The appellants had also filed CM Nos.1454 & 1455-C of 2010 for the purpose of placing RSA No.1910 of 2009 (O&M) - 3 - on record plaint and written statement. The said applications were allowed on 15.02.2010. The Local Commissioner appointed by this Court had measured the street in question and attached a site plan with his report, according to which the actual width of the street is between 7 feet 4 inch to 8 feet excluding the area of the drainage (Nali). Thus, the case of the plaintiffs is proved, who have alleged that the street is 8 feet wide. In this appeal, learned counsel for the appellants has only narrated the facts but he has failed to raise any substantial argument to persuade this Court to take a view different from the view taken by both the Courts below while recording a finding of fact. Learned counsel for the appellants has submitted that the case of the plaintiffs is not proved because they have alleged that the street is 8 feet wide whereas Local Commissioner appointed by this Court had opined that it is between 7 feet 4 inch to 8 feet wide. After hearing learned counsel for the appellants, I am of the view that even if Local Commissioner has held that street is 7 feet 4 inch to 8 feet in width but the case of the defendants is not proved, who had alleged it to be 4 feet or at the most 6 feet in width. Therefore, the case of the plaintiffs is proved that the defendants are trying to include some portion of the street in their house as a result of which width of the street was going to be reduced. No other point has been raised. In view of the above discussion, I do not find any merit in the appeal as such the same is hereby dismissed. However, parties shall bear their own costs. (RAKESH KUMAR JAIN) November 30,2010 JUDGE Vivek