Regular Second Appeal No. 4368 of 2005 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 4368 of 2005 Date of Decision: August 10, 2009 Dinesh Kumar etc. ...........Appellants Versus Shiv Dayal and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sachin Mittal, Advocate for the Appellants. Mr.Sanjay Mittal, Advocate for the Respondents ** Sabina, J. Plaintiffs have filed a suit for permanent injunction against defendants Ram Swarup to seek a decree of perpetual injunction restraining the defendant from creating any hindrance and to create any encroachment in the passage and the defendant should remove the Chabutra and further remove the small wall duly shown in red colour in the site plan attached with the suit. The suit of the plaintiff and counter claim of the defendant were decreed by the Civil Judge (Senior Division) Narnaul vide judgment and decree dated 11.1.2003. Aggrieved by the same, defendant filed an appeal and the same was dismissed by the Additional District Judge, Narnaul vide judgment and decree dated 17.5.2005 . Hence, the present appeal. The brief facts of the case, as noticed by the learned Additional District Judge in paras 2 and 3 of its judgment, reads as under:- “Briefly the case of the plaintiffs/respondents is that there is a Regular Second Appeal No. 4368 of 2005 (O&M) 2 Rasta Sare Aam 11' to 13' wide shown in yellow colour in the site- plan and the passage which runs from north to south and attached a chowk with the main street is to be used by the plaintiffs and the defendant along with other persons and it came to an end in a chowk shown in yellow colour in the site-plan. It is further pleaded that the Rasta Sare Aam is used for ingress and egress and it being used by the inhabitants reisiding in their houses and the doors of their houses open in the chowk. The plaintiffs have further pleaded that defedants Ram Sarup have raised construction of a Chabutri 2'x22' shown with marks OP in the site-plan and has also raised a small wall shown with letters XY in the site plan and these two encroachments have created a hindrance in the smooth use of the passage for which the defendant has no right, title or interest therein and hence the defendant be directed to remove the wall as well as the small Chabutri and be also restrained to create any hindrances in the passage in any manner. The defendant has been requested many a times to remove the hindrance but he was adamant not to do so. Hence, this suit. 3. Defendant filed the contested written statement and also filed the counter-claim in which he had pleaded that there is no Rasta sare aam at the spot and in fact there is a blind allay which leads to the houses and Nohra of the parties to the suit. It is alleged that the Sare Aam Rasta is at some places 10'x0” wide and at some places 7'x9” wide. He has further pleaded that Ramanand son of Sheo Narain had also raised construction of a Chabutra 7'x2'.6” and the defendant has raised the construction of a small Chabutri Regular Second Appeal No. 4368 of 2005 (O&M) 3 4 inches in height for the purpose to protect his house from entering the rainy water. The defendant has further pleaded that he has not created any hindrance in the passage and cart, tractor etc. are passing through the passage comfortably. The defendant has further pleaded that the plaintiffs have encroached upon the street which is shown in red colour in the site plan attached with the suit. As such the defendant has claimed counter claim that the plaintiff be directed to remove the encroachment. It is further pleaded that he has not encroached over the chowk in any manner.” On the pleadings of the parties, the following issues were framed by the trial Court:- “i) Whether the disputed property is a thorough fare?OPP ii) Whether the plaintiffs are entitled for to the injunction as prayed for?OPP iii) Whether plaintiffs have encroached upon the disputed property as alleged, if so, to what effect?OPD iv) Whether defendant is entitled to the relief as prayed in the counter claim?OPD v) Whether the suit is not maintainable in the present form?OPD vi) Whether the civil court has no jurisdiction to try and entertain the present suit?OPD vii) Whether suit is bad for non-joinder of necessary parties?OPD viii)Whether plaintiffs are estopped to file the suit due to their own act and conduct?OPD ix)Whether plaintiffs have no cause of action to file the present Regular Second Appeal No. 4368 of 2005 (O&M) 4 suit?OPD x) Whether suit is false and vexatious and defendant is entitled to special costs?OPD xi) Relief? After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Plaintiffs filed a suit for permanent injunction that the defendants should be restrained from creating any hindrance or encroachment in the passage in dispute. The defendant be directed to remove chabutra and small wall shown in red colour in the site plan. Defendants, on the other hand, filed a counter claim that there was no thoroughfare at the spot and, in fact, it was a blind street. It was averred that the plaintiffs had encroached upon thoroughfare and they should be directed to remove the encroachments. In a civil suit No.362 of 19899 between the defendant Ram Swarup and Ramananad decided on 11.3.1992, the site plan prepared by Kamal Singh, was proved on record as Exhibit P2. The said draftsman appeared in the witness box as PW3 and proved the site plan. In the said site plan, no chabutra or small wall was shown to be in existence. Hence, the Courts below rightly held that the contention of the defendant that he had raised construction of chabutra 3'-4” in height in the year 1965 or wall in the same year, were without any basis. In the site plan proved on record in the earlier litigation, the chabutra or wall alleged to have been constructed by the defendants in the year 1965 were not depicted. Hence, the Courts below rightly observed that the defendants had constructed the chabutra in the passage after year 1989 which created hindrance to the Regular Second Appeal No. 4368 of 2005 (O&M) 5 general public. The said chhabotra was 2'x22'. A small wall was constructed in the passage by the defendants. Attorney of the defendant Dinesh Kumar stated that Smt.Phusli, Nathu Singh and Ramanand had encroached in front of their houses by raising construction of the chabutra. However, the said persons are not party to the suit. Defendant further pleaded that Shiv Dayal had raised some unauthorized construction in front of his house. However, as per the report of P.R.Gupta, there were only some self projections in the house which were part of the house and could not be termed as encroachment. Chabutra in front of the house of Rohtash was found to be an encroachment and the trial Court ordered that the same be removed. Learned lower appellate Court has observed that the defendant had failed to establish by proving on record any document that the plaintiffs had encroached thoroughfare shown in the site plan Exhibit D3/A. The said finding of fact arrived by the Courts below cannot be interfered with by this Court in appeal. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 10,2009 arya