In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3214 of 2008 Date of decision: October 17,2008 Satbir and others ..Appellants. Versus Satinder Kumar Tyagi and others ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. K.C.Rajput, Advocate for the appellants. ... Rakesh Kumar Garg,J. This is defendants second appeal challenging the judgment and decrees of the lower Appellate Court whereby the appeal filed by the plaintiff- respondent has been accepted and a suit for permanent injunction restraining the respondent/defendant Nos.1 to 5 from interfering in the right of the plaintiff- respondent in the disputed passage in any manner whatsoever; with a further direction to remove forthwith encroachments made by them in the disputed passage. Briefly stated the facts of the case are that the defendants No.1 to 5 were the owners in possession of 3/5 share of agricultural land comprised in Khewat No.72 min and 74, Khata Nos.110 min and 113, Rectangle No.47, Khasra No.24(8) and Rectangle No.62, Khasra No.4(4-0), total land measuring 12 kanals only situated within the revenue estate of village Garhi Kesri, Tehsil Ganaur, District Sonepat. The plaintiff-respondent along with his brothers, namely Ravinder Kumar and Krishan Kumar purchased a piece of land measuring 12 Marlas for a sum of Rs.54,500/- per registered sale deed dated 27.3.1996, out of the total land measuring 12 kanals referred to above. The plaintiff and his brothers further purchased the land measuring 1 Kanal and ½ Marla from the area of land comprised in Rectangle/Killa No.47/24 and 62/4 for the consideration of 98,000/- per registered sale deed dated April 8,1996. Appellant/plaintiff Satinder Kumar Tyagi further purchased 6 Marlas of land from the area of Khasra No.47/24 from respondent/defendant Nakul Sain for the consideration of Rs.54,500/- per registered sale deed dated December 16, 1999. It is thus evident that the plaintiff and his brothers purchased from the respondent/defendants No.1 to 5 total land measuring 1 Kanal 18-1/2 Marlas. It has been very specifically pleaded by the appellant/plaintiff that in all the three sale deeds executed by the respondents/defendants in his favour there is specific mention of a three Karam wide passage on the northern side of the area so purchased. This passage is being used by them for ingress and egress to their property. It has been further urged by the appellant/plaintiff that the respondents/defendant No.1 and 2, Nakul Sain and Amar Singh have set their evil eyes on the three Karam wide passage in dispute which they propose to annex with their property. Hence the suit. The suit was contested by the defendants on the ground that the jurisdiction of the civil court is barred under the provisions of Punjab Village Common Lands(Regulation)Act, 1961 and the claim of the plaintiff—respondents is not maintainable. The sale in favour of the plaintiff-respondents was not disputed. However, it has denied that a 3 Karam wide passage was in existence at the spot. The suit of the plaintiff-respondent was dismissed by the trial Court. However, the lower Appellate Court vide impugned judgment and decree dated 12.6.2008 accepted the appeal filed by the plaintiff-respondents and decreed the suit of the plaintiff-appellant. Feeling aggrieved of the aforesaid judgment and decrees of the lower Appellate Court, the defendants have filed the instant appeal in this Court. Learned counsel for the appellants has vehemently argued that the lower Appellate Court has wrongly relied upon Ex.P9 alleged to be an arbitration award dated 8.6.1994 which was merely a private document and which was never implemented between them. Learned counsel for the appellant also argued that the lower Appellate Court has wrongly ignored the report of local commissioner, according to which, there is no passage on the northern side of the plot of the plaintiff. Learned counsel has lastly argued that the lower Appellate Court has wrongly converted the suit for permanent injunction into a suit for mandatory injunction. On the basis of these arguments, It was prayed that the appeal be accepted and the judgment and decree of the lower Appellate be set aside. I have heard learned counsel for the appellant. However, I find no force in the contentions raised by him. It is relevant to refer to the observations of the lower Appellate Court which are as under:- “Ex.P5 is the certified copy of the sale deed executed by respondent Nakul Sain in favour of the appellant/plaintiff and his two brothers on March 27, 1996 in which the three Karam wide passage has been duly mentioned on the niorthern side of the plot of the plaintiff. Similarly Ex.P6 is the certified copy of the sale deed executed by respondent Amar Singh in favour of the appellant/plaintiff and his two brothers on 8.4.1996 in which it is specifically mentioned that on the northern side of the property is a three Karam wide passage. Ex.P7 is the certified copy of the sale deed executed by respondent No.1 Nakul Sain in favour of the appellant/plaintiff on 16.12.1999 in which it is very specifically mentioned that there is a three Karam wide passage on the northern side of the plot. Ex.P9 is the document of utmost importance to this case. Respondents/defendants Nakul Sain, Amar Singh, Mahabir, Satbir and Shiv Kumar sons of Sh. Surja and their brother Prem Raj had appointed S/Shri Suraj Bhan, Sat Parkash, Chand Swaroop. Ram Parshad and Jagat Singh as arbitrators on 28.5.1994 to amicably settle their respective claims on their joint holding. An agreement was also recorded by them in favour of the arbitration by five persons named above on 3.6.1994 The dispute was in respect of the land comprised in Rectangle No.47, Rectangle No.62 and Plot No.778. The copy of the Award of the arbitrators is Ex.P9 on record. The area which had fallen to the lot of respondents/defendants Nakul Sain and Amar Singh is Mark A on the document which clearly mentions of a three Karam wide passage on the northern side of the property in dispute. It is mentioned in the area which had fallen to the share of defendant Satbir that there is a three Karam wide passage on the southern side of his property. It is evident from site plan Ex.P1 that on the northern side of the plot which had fallen to the share of Satbir is the three Karam wide passage in dispute. In fact the need to carve out the disputed passage is very clearly recorded at page 5 of the award and the arbitrators have also recorded the manner in which the co-sharers have been compensated because of the loss of the areas comprised in the three Karam Wide passage in dispute. The document bears the thumb impressions of all the respondents/defendants including their brother Prem Raj. It is very specifically recorded therein that the contents of the award had been duly read over and explained to them and that they had thumb marked it in token of its correctness. The respondents/defendants have relied upon the copy of site plan Mark D-12 in which the disputed passage is very clearly shown on the northern side of the area comprised in Killa No.47/24 and 62/4. This document has not been proved in accordance with the Evidence Act but since the document has been placed on record by the respondents/defendants, the appellant/plaintiff can always take benefit from it. It shall be absolutely in place to refer to the relevant portions of the cross-examination of the defendants. Sh. Mahabir (DW1) has stated in his cross-examination hat all the brothers had indeed mutually settled their disputes and the award was duly registered in the office of Sub Registrar on 8.6.1994. Similarly Sh. Satbir (DW3) and Shri Amar Singh (DW4) have admitted in their cross examination that Ex.P9 (award) bears the thumb impressions of all the six brothers. The document was duly registered in the office of the Sub Registrar on 8.6.1994. They have also vouchsafed the genuiness and sanctity of award Ex.P9.” Thus, there is overwhelming evidence available on record to hold that a 3 Karam wide passage was carved out with the consent of all the co-shaers and it does not lie in the mouth of appellants to say that they are not bound by the admissions by their brothers that there exists a 3 Karam wide passage on the northern side of the property sold by by the appellant and his two brothers. It is established on record that 3 Karam wide passage in dispute was carved out by the arbitrator for the use and benefit of all the co-owners and that the effected persons were duly compensated with extra land. The controversy whether disputed Rasta exists or not, is a question of fact and a finding of fact has been recorded by the courts below that the disputed passage exists on the northern side of the plot of the plaintiff-respondents which was carved out by the co- sharers of the land including the appellants. Thus no interference is called for in the well reasoned judgment of the lower Appellate Court. No substantial questions of law arises. No merit . Dismissed. October 17, 2008 (RAKESH KUMAR GARG) nk JUDGE