1 422 b 16 P Second AppealNoA208 of 2008 1 r INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second AppealNo1208 of 2008 108M1 Date of Orderl 9l September2009 GurbakshKaurandanother eeeAppellants Versus Garib Dass and others Respondents 0 0 CORAM HONBLE MRJUSTICE RAJIVE BHALLA C5 I Present Mr Mansur Ali Advocate for the appellants Z Mr Rohit AhujaAdvocate for respondents nol to 3 Mr Prem Kumar Advocate for respondent no 4 I RAJIVE BHALLA J 08 The appellantschallengejudgmentsand decrees dated Ol 032007 and 14 112008 passedby the Civil Judge6JuniorDivisionl Z Jalandhar and the Additional District JudgeJalandhar decreeing the suit m filed bythe resporldents and dismissing their appeai The nol to 3 filed a suit prayingfor the ISsuance f a mandatoryinjunctiondirecting the to remove the obstruction marked as ABCD in the site planExP2 raised by them in a publicstreet As per their case Gurbaksh Kaur appellantno l has encroached upon 7 feet of a common street and should therefore be directedto remove this obstruction It was also averred that a suit Oledby Gurbaksh no 1 to restrainrespondent no 1 from blocking the main entrance to her house was dismissed by holdlngthat Gurbaksh Kaur has encroached upon the street In response to the aforementionedsuit the appellantsdenied the allegationsin the plaintand averredthat the property was initially owned by Uma 2012.12.01 16: 05 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 423 7 J Second AppealN04208 of 2008 2 Karam Chandson of Jassu Ram who carved out a colony Iaid streets and soldplots The purchasersof these plotshave built houses but the streets continue to exist as originally demarcatedby the vendor without any addition or alteration Thoughthe street to the north and south is 12 feetwide the street in front of the appellantshouse has alwaysbeen 5 feet wide It was further averred that the area in their possessionIS In accordancewith the area purchasedbythem As regards the dismissal of 0 the civil suit filed bythe appellantno l it was assened that thejudgment 3 Itl that suit does not bind the appellants as it is a mere suit for grantof an The MunicipalCorporationrespondentno filed a written statement the averments in the plaintbyasseningthat the e Z street had not been declared a publicstreet r On the basis of the pleadingsthe trial court framed the following issuesle I oll 1 INhether the plaintiffsare entitled to the mandatory r 4 injunction as prayedfor7 OPP m 2 Whether the suit is not maintainable70PD Z 3 Whether the plaintiffs have got no Iocus standi to Ole the presentsuit20PD 4 Whether the suit is bad for non4oinderand misoinder of the parties20PD 5 Whether the plaintiffsare Iiable to be rejectedunder Order 7 Rule 11 and Ulo 2 Ruie 2 CPC70PD 6 Relief After appraisalof the pleadingsthe evidence adduced and the argumentsaddressed the trial court decreed the suit by directingthe appellantsto remove the encroachment as depictedin the site plan ExP2 withintwo months Uma 2012.12.01 16: 05 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 424 4J 6 Second AppealNo208 of 2008 3 by the aforementionedjudgmentand decree the filed an appeal Vide judgment and decree dated 141 12008 the first court dismissedthe appealand amrmed the Ondings recordedbythe trial court CounseIfor the appellantssubmits that the judgment in the civil suittitled Gurbax Kaur vs Garib Dass decided on Ol 1997 is irrelevant m as the suit was filed byGurbaksh Kaur whereas the house is owned by her 0 husband Even otherwise it was a suit for grant of an injunction C and therefore the findingsrecorded againstappellantno I 0 are irrelevant It is further submittedthat the courts below have wrongly I rejectedthe site plan Exe1 preparedby DV3 Balwinder Singh the Z draftsman of the MunicipalCorporationIt is submitted that as the MunicipalCorporationhas not declared publicstreet the couns below had no to direct the appellants to remove the alleged I 08 encroachment It is further submitted that in case the Iand in their possessionis measured by reference to the sale deed it stands 7 established that the appellants are in possessionof the area sold to them Z It is submittedthat in view of the errors committedby the couns below the following substantialquestions01law arise for consideration il Whether the judgmentEx4 dated 1 1997 passed Ill earlier Iitigation could be bindingin the presentsuit filed byRespondents Nol to 32 iil VVhetherthe Coutls below were under Iegalmandateto Iead evidence to the effect that the appellantsNo 1 and 2 had encroached upon publicstreet2 iiil Whether the couns below could have simplyrelied upon the previousjudgmentEx dated 1 1997 desplte the fact that the suit so filed by the r Uma 2012.12.01 16: 05 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 425 p 4 Second AppealNo208 of 2008 No1 to 3 had to stand on its own Iegs7 ivl Whether the stand and the testimonyof Respondent Nos officialcould be discarded despite the fact that the had producedthe site planof the street in questionED4 2 Vl Whether the of the coutts below e r arebased on conjectures and surmises7 0 vil Whetherthe courts below could decree the suit so filed C by no to 3 without Ieadingproper I C5 evidence with regardto the site planin questionand theallegedencroachment2 Z Viil Whetherthe courts below could disbelieve the official e 2 testimonyof DW3 Balwinder Singh Draftsman C Municipal I 08 Viiil Whether the courts below could discard the fact that even the nol had admittedthe site planSO m presented bythe Municipal Corporation in defence2 r Z QW have heard counsel for the partiesand carefullyconsidered the 4 arguments and the substantialquestions of Iaw framed by counsel for the appellantsIn my opinionthe concurrent findingsof fact recorded bythe courts below that the appellantshave encroached upon a common street do not call for intetference or raise any substantialquestionof Iaw Both the courts below have recorded concurrent findingsof fact 1 that the appellantshave encroached upon a common street and are therefore required to remove this encroachment The appellants admit the constructionbut allegethat as the street as originally carved out was 5 feet wide the appellantscannot be said to have encroached upon the street It is not denied that the street is 12 feet wide to the northern and eastern side Uma 2012.12.01 16: 05 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 426 P Second AppealNo208 of 2008 5 of the house It is not denied that in a civil suit Oled by GurbakshKaur no it was held that she has encroachedupon a partof this street As regardsthe submission that the area SOldtO the and the area in their possessiondoes not vary suHice is to state that even if true their vendor could not have sold a partof the common street and any error on the part of their vendor would not m of a common stree Furthermore the mere fact that the street 0 has not been deciared a publicstreet as defined under the Punjab C3 Corporation Act would not Iegitimisethe unauthorised 1 encroachmentof a common street I By way of the first and third questionsof Iaw theappellants seek Z to urge that the judgmentExP is irrelevant l find no reason to accept the aforementionedargumentAppellant no 1 filed a suit for a permanent injunctionwhich was dismissed by holdingthat she is not entitled to any I P a5 relief as she has encroached upon a portionof the streetle courts below therefore rightlyrelied upon this judgement to hold againstthe 7 appellants The second and sixth questionsof Iaw are identical The appellantsseek to assert that respondents Nol to 3 have not Ied any tl evidence to establish the allegedencroachment Apart from being factuallyincorrect respondentsnol to 3 have Ied suHicient evidence In supportof their pleadingsandtherefore the said questionsdo not arise for consideration The fourth seventh and eightquestionsof Iaw relate to the site 1 planExl e and the testimonyof DW3 Balwinder Singhthe draftsmanof the MunicipalCorporationJalandhar The courts below rejectedEx1 r as the dimensions of the common street depictedin wider than the dimensions admitted by the parties In order to place the conclusion recorded by the first appellatecourt in its correct perspectiveit would be appropriate to reproduce an extract from thejudgmentof the first Uma 2012.12.01 16: 05 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 427 1 6 Second AppealNo208 of 2008 appellate court Whenupon notice of the suit defendantGurbaksh Kaur appeared as defendantnol she filed written statementdated 1692002 In which she agaln that the street abuttingeastern side of her r is 5 ft In width and it is of the same width 1 Since thedate of carvingout of the colonyRespondent 0 GaribDass has also pleadedthat the street abutting C the houseof the appellantGurbaksh Kaur narrows C5 downto 5 f ln width when it abuts her proper But I when the Ieads its Z evidence its draftsman Balwinder Singh made a strangestatement and proveda strangesite plan r Exl Ill which he changedthe width of the street a I the house of Garib Dass as 22 f and the r06 flO widthof the streetabuttingthe house of Gurbaksh Kaur It 7 as 15 ft 6 inches Z It is therefore apparentthat in view of the differencein the dimensionsthe courts below rightlyrejected the depositionof DW3 Inview of what has been stated hereinabove as the impugned judments and decrees do not suHerfrom any error of Iaw or raise any substantialquestionof Iaw the appealis dismissed with no order as to P oO 1 RAJIVE BHALLA I nt JUDGE 4 e 4 Uma 2012.12.01 16: 05 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document