Regular Second Appeal No. 1271 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1271 of 2009 Date of decision : April 23, 2010 Tara Chand ....Appellant versus Kuldeep Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RS Sangwan, Advocate, for the appellant Mr. RA Sheoran, Advocate, for respondents no. 1 to 7 None for respondent no. 8 L.N. Mittal, J. (Oral) Plaintiff no. 2 has filed the instant second appeal. Suit was filed by appellant Tara Chand and proforma respondent no. 8 Mool Chand against Raghbir Singh defendant since deceased and represented by respondents no. 1 to 7 as his legal representatives. It was alleged that there is a public street existing at the spot which is also used by plaintiffs for access to their houses, but the defendant wanted to close the said street by including it in his house. Accordingly permanent injunction was claimed to restrain the defendant from raising any construction in the disputed street and from closing the same by fixing gate therein. Defendant in his written statement denied existence of the Regular Second Appeal No. 1271 of 2009 -2- disputed street. Learned Civil Judge (Junior Division), Charkhi Dadri vide judgment and decree dated 15.10.2003 decreed the plaintiff's suit and directed the defendant to remove the encroachment from the disputed street (which was allegedly made during the pendency of the suit). Permanent injunction was also granted restraining the defendant from encroaching upon the said street except in due course of law. First appeal preferred by defendant has been disposed of by learned Additional District Judge, Bhiwani vide judgment and decree dated 4.12.2008 whereby judgment and decree of the trial court have been modified. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the parties and perused the case file. Perusal of impugned judgment dated 4.12.2008 of the lower appellate court reveals that the said court has not recorded any finding as to whether the disputed street is in existence or not. On the other hand, the lower appellate court has observed that if the street exists, then the defendant/appellant can be restrained from encroaching upon the same and then jurisdiction of the civil court would be barred. However, no finding of fact is recorded as to whether the disputed street is in existence or not. Consequently, the case has to be remanded back to the lower appellate court for recording definite finding regarding existence or non-existence of the disputed street. Learned counsel for the respondents vehemently contended that the plaintiffs in their replication admitted that the defendant had raised construction over the disputed street one or two days before filing the suit, Regular Second Appeal No. 1271 of 2009 -3- but the plaintiffs did not seek mandatory injunction for removal of the said construction and consequently suit for permanent injunction alone could not be maintained. The contention although apparently attractive is in fact without any substance. Perusal of replication filed by the plaintiffs reveals that the plaintiffs stated therein that the defendant had raised construction in shamlat chowk one or two days before filing of the suit but the defendant also wanted to encroach upon the disputed street. It is thus apparent that the construction raised by defendant as pleaded in replication was in the chowk and not in the disputed street for which injunction was claimed in the suit. No relief has been claimed in the suit regarding chowk in which construction was allegedly raised by defendant before filing of the suit. Consequently, aforesaid contention cannot be accepted because the plaintiffs did not admit that any construction had been raised in the disputed street before filing of the suit. In view of aforesaid, the instant second appeal is allowed and judgment and decree dated 4.12.2008 passed by learned Additional District Judge, Bhiwani are set aside and the case is remanded to the lower appellate court for fresh decision of the first appeal filed by the defendant in accordance with law. I have not expressed any opinion on the merits of the case. Parties are directed to appear before the lower appellate court on 25.5.2010. ( L.N. Mittal ) April 23, 2010 Judge 'dalbir'