Regular Second Appeal No. 1706 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 1706 of 2008 Date of Decision: 4.8.2011 Santokh Singh and Another …Appellants Versus Jaswant Singh …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Arvind Singh, Advocate for the appellants. Ms. Sonia G. Singh, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present regular second appeal has been filed by the defendants to the suit. To put the facts in right perspective, after the same are taken from the plaint and written statement, it will be necessary to mention that Iqbal Singh had three sons namely Kuldip Singh, Santokh Singh and Swaranjit Singh. They were having a joint property. One of the brothers, namely Kuldip Singh had sold his share in the property to Jaswant Singh, plaintiff. In first paragraph of the plaint, it was stated that Kuldip Singh is owner of the house bearing No. 554, situated in Ward No. 13, Assandh, District Karnal. The house consisted of four rooms, two stores, one kitchen and one bathroom. It was constructed in the area of 350 square feet. In paragraph No.2 of the plaint, details and description Regular Second Appeal No. 1706 of 2008 2 of the property has been given, stating that on the northern side of the house, there was a Petrol Pump of Sita Ram, towards southern side, there was a house of Subhash son of Tek Ram, towards eastern side, there was a street and towards western side, there was a room belonging to Kuldip Singh from whom the plaintiff had purchased the property. It is sated that the agreement to sell was executed for a sale consideration of ` 6,00,000 by Kuldip Singh in favour of plaintiff/respondent and ` 2,00,000 was paid as earnest money. Kuldip Singh is stated to be permanently settled in Canada. A grievance was made that his other two brothers, who are defendants to the suit (appellants) being influential, made an attempt to block the way shown in red colour in the site plan so that the plaintiff could not enjoy possession of the property purchased by him, by way of agreement to sell, possession of which was also delivered. Upon notice, the defendants had caused appearance and filed a written statement wherein it was stated that the plaintiff intended to grab the land of Gurudwara Shri Guru Nanak Bunga Sahib, Assandh, District Karnal. It was further stated that the said Gurudwara is a registered Society and the appellants/defendants are its members. The plaintiff has opened a door towards Gurudwara and using its property as a passage. It was further stated that Gurudwara is not impleaded as a party. The alleged agreement to sell vests no right in the plaintiff to use the passage. After completion of the pleadings, the trial Court had drawn the following issues:- “1. Whether the plaintiff is entitled to a decree Regular Second Appeal No. 1706 of 2008 3 for permanent injunction, as prayed for? OPP 2. Whether the present suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Relief.” The plaintiff examined Kuldip Singh, brother of the appellants/defendants, as PW.1. He examined himself as PW.2 and also examined Shashikant Sharma as PW.3 and proved the site plan as Ex.P1. Swaranjit Singh, defendant No.2 to the suit, appeared as DW.1 and also examined Amar Singh as DW.2 and proved site plan as Ex.D2. The trial Court relied upon the testimony of DW.2 Amar Singh to hold that there was existence of four feet wide passage towards western side of the house in dispute. The trial Court further held that perusal of the site plan, relied upon by the appellants, revealed that a there was no other entry to the house of the plaintiff. The trial Court rejected the argument that since the plaintiff had equal efficacious remedy of specific performance of agreement to sell, therefore, the suit for permanent injunction was not maintainable. Issues No.2 and 3 were decided against the defendants but in favour of the plaintiff. The suit was decreed and the defendants were restrained from blocking the way, as shown in red colour in the site plan, except in due course of law. The finding, returned by the trial Court, has been affirmed by the lower Regular Second Appeal No. 1706 of 2008 4 Appellate Court. Thus, there is a concurrent finding in favour of the plaintiff/respondent. Mr. Arvind Singh, Advocate, appearing for the appellants/defendants, has drawn my attention to the site plan Ex.P1 and has submitted that since the defendants are members of Gurudwara, therefore, the plaintiff cannot be permitted to use the passage which belongs to Gurudwara and the plaintiff has got his own passage. The site plans, proved by the parties, have been considered by both the Courts below. A view formulated by both the Courts below canot be held to be perverse simply because another view is possible. This Court will not substitute its opinion with the one formulated by both the Courts below. It is a case where two brothers are in dispute with one brother, who is settled abroad permanently. The seller of the property, who is a brother of the appellants/defendants, had also deposed in favour of the plaintiff. Taking the totality of circumstances into consideration, no ground is made out to cause interference in the present appeal, especially when learned counsel for the appellants has failed to raise any question of law, much less a substantial one. Hence, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge August 4, 2011 “DK”