RSA NO.1178 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1178 of 2009 (O&M) Date of Decision: August 26, 2009 Surinder ...........Appellant Versus Nand Kishore etc. ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Gauttam Dutt, Advocate for the appellant. ** Sabina, J. Plaintiff filed a suit for permanent injunction. The suit of the plaintiff was decreed by the Civil Judge (Junior Division) Gurgaon vide judgment and decree dated 24.7.2008. Defendant was restrained from making any construction over northern side i.e. 30' wide rasta. Aggrieved by the same, the defendant No.1 filed an appeal which was dismissed by the Additional District Judge, Gurgaon vide judgment and decree dated 1.10.2008. Hence, the present appeal by the defendant No.1. The facts of the case, as noticed by the Additional District Judge in paras 2 and 3 of its judgment, read as under:- “ 2. The brief facts of the plaintiff's case are that he is owner in possession of a plot situated within the municipal limits of Gurgaon bearing Khasa No.4334/35, Block-E, Rajindra park, Gurgaon to the extent of 1/3rd share and said plot bounds as under : RSA NO.1178 of 2009 (O&M) 2 East: 102' Rasts 18 wide West: Property of Subh Ram North: 132 ft.6 inches Rasta 30 wide South: 132ft. 6 inches property of Manphool The said plot had been purchased by the plaintiff vide a registered sale deed vasika No. 3971 dated 18.11.1980 in the office of Sub Registrar Gurgaon. The defendants are clever and cunning type of persons and have no care of law and want to grab the northern side of the plot in question illegally, unlawfully and forcibly without any right, title or interest. The northern side of the plot is having a rasta 30' wide and all co-sharers in the plot have equal right and interest to enjoy the 30' wide rasta for ingress and out- gress purpose. The property is situated in the municipal limits and has good market value. The defendants have collected building material to raise construction on the northern side of the plot and if the defendants succeeded in their malafide design then the plaintiff shall suffer an irreparable loss and injury which cannot be compensated in any manner. Plaintiff asked the defendants many times not to interfere in his peaceful possession and not to grab or raise any type of construction over northern side 30' wide rasta or any other portion of the plot in question but the defendants refused to do so. Hence, the plaintiff filed the suit with a prayer that a decree for permanent injunction restraining the defendants from interfering the plaintiff in the plot in question and from making any sort of construction over northern side of the plot mentioned in para no.1 of the plaint of the plaintiff be RSA NO.1178 of 2009 (O&M) 3 passed in favour of the plaintiff and against the defendants and further prayed that in case the defendants succeeded in grabbing or encroaching upon northern side 30' wide rasta of the plaintiff, then a decree for mandatory injunction directing the defendants to hand over its vacant and peaceful possession of the plot. 3. Notices were served upon the defendants. Defendant No.1 filed written statement contesting the claim of the plaintiff raising preliminary objections regarding maintainability, cause of action, locus-standi, non-joinder and mis-joinder of necessary parties etc. On merits, it has been stated that the bounaries detailed in para no.1 of the plaint are wrong. It has been submitted that one Smt.Chameli Devi purchased 1/3rd share of plot of Khasra No.4334/35 measuring 500 sq. yards from Subh Ram and the said Chameli Devi leased out that share to the plaintiff. It has been submitted that plaintiff is not entitled for any sort of rasta from the plot of the defendant. It has been denied that defendant no.1 was asked many a times for the alleged rasta. Defendant No.1 is absolute owner in possession of own plot and the defendant has raised his residential house and the plaintiff has no right in any manner to ask any rasta in question from the defendant no.1. Other allegations were disputed and a prayer was made for dismissal of suit with costs. Defendant No.2 was proceeded against ex-parte vide order dated 11.11.2004 On the pleadings of the parties, the following issues were framed:- RSA NO.1178 of 2009 (O&M) 4 “1. Whether the plaintiff is owner in possession of plot bearing Khasra No.4334/35, Block E.Rajindera Park to the extent of 1/3rd shrare?OPP 2. Whether there is a rasta/passage of 30' wide on the northern side of the suit property?OPP 3. Whether the parties to the suit are entitled to use the rasta/passage?OPP 4. Whether the suit of the plaintiff is not maintainable?OPD 5. Whether the plaintiff has no cause of action to file the present suit ?OPD 6. Whether the plaintiff has no locus-standi to file the present suit?OPD 7. Whether the suit of the plaintiff is bad for non-joinder and mis- joinder of necessary parties?OPD 8. Whether the plaintiff is estopped from filing the present suit against defendant no.1 by his own act and conduct?OPD 9. Whether the suit of the plaintiff is false and frivolous?OPD 10. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merits. Subh Ram was owner of 1500 sq yards of a plot. Plaintiff purchased 500 sq.yards out of the said plot vide sale deed Vasika No.3974 dated 18.11.1980. Son of the plaintiff Mahabir Parshad Sharma purchased 500 sq.yards out of the said plot and leased out the same to defendant No.1 The case of the plaintiff is that there was a 30' wide path on the northern side of the plot in dispute and the defendants be restrained from RSA NO.1178 of 2009 (O&M) 5 encroaching upon the said path and interfering in his possession. Exhibit P7, sale deed executed by Subh Ram in favour of Mahabir Parshad Sharma depicts a passage of 30' wide on the northern side. A perusal of the site plan Exhibit P11 shown, during the course of arguments, reveals that there is a path on the northern side of all the three plots sold by Subh Ram to the plaintiff, his wife and son. During the course of arguments, learned counsel for the appellant has submitted that the plot in possession of the appellant was on the eastern side. A road abuts the plot of the appellant on the eastern side and 30' wide path on the northern side. A perusal of site plan (Exhibit P11) shows that in case the path 30' wide on the northern side is blocked, the right of the plaintiff to enter his property would be blocked. Hence, the Courts below had rightly held that the appellant could not encroach upon the passage on the northern side. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge August 26, 2009 arya