IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2714 of 2011 (O&M) Date of decision: 28th September, 2011 Ranjit Singh … Appellant Versus Smt. Kamlesh and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Kumar Khubbar, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Appellant-plaintiff instituted a suit against his two brothers namely, Ran Singh and Avtar Singh. Ran Singh-defendant No.1 to the suit has expired and is being represented by his widow and two sons being his legal representatives. Plaintiff had filed a suit for permanent injunction praying that the defendants be restrained from damaging, demolishing or dismantling any part of the Rasta marked as ‘A to B’ shown in red colour in the site plan attached with the suit. It was also prayed that the defendants be further restrained from interfering into peaceful use of Rasta by the plaintiff for ingress and egress to his land and residence. It was averred in the suit that plaintiff is in exclusive cultivating possession of the land measuring 5 Kanals falling in Khewat No.75, Rect. No.41 Khasra No.99, where the house of the parties have been built for residential purposes and Rasta, detail and description whereof has been given in the plaint Regular Second Appeal No.2714 of 2011 (O&M) and depicted in the site plan attached with the suit, is used by the parties for approaching their residential houses. Upon issuance of notice of the suit, respondent-defendants caused appearance and took a stand that the plaintiff has not approached the Court with clean hands and has attached a fabricated, false and fictitious site plan. They further stated that the land shown by the plaintiff in the site plan is of the Municipal Committee and there is a Chabutra of the answering defendants at the spot. After completion of the pleadings, the trial Court had drawn following issues: “1. Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP 2. Whether the plaintiff has not come to the Court with clean hands? OPD 3. Whether the plaintiff has no locus-standi and to file and maintain the present suit? OPD 4. Whether the suit is maintainable in the present form? OPD 5. Whether the plaintiff has no cause of action to file and maintain the present suit? OPD 6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 7. Relief.” The plaintiff himself appeared as PW-1 and stated that the site plan Ex.P1 was got prepared by him from the draftsman namely Singh Ram. He further stated that at his instance on the directions of the Court, the Local Commissioner had also visited the spot and as per the report of Local Commissioner a passage of three Gathas was left for ingress and egress on the western side. The plaintiff also relied upon 2 Regular Second Appeal No.2714 of 2011 (O&M) Aks Shajra Ex.P4 in support of his contention. Whereas, defendants led evidence to the contrary. The trial Court after appreciating the evidence has held as under: “13. … … … The site plan Ex.P1, which has been proved by the plaintiff, shows a pucca road from point A to B but thereafter, there is no rasta leading to the house of Ranjit Singh. This site plan has been got prepared by the plaintiff himself. The Local Commissioner who visited the spot has shown the rasta in Ex.P5 although there is no rasta shown in the Aks Sizra Ex.P4 and this passage seems to have been created by the plaintiff himself connecting to the government road from the land of the municipal committee and he has not pleaded that he has no passage to the fields which are abutting his house. The said site plan is for the year 2001 and plaintiff is using the same rasta to reach his house and fields and is not using the disputed rasta. The plea of the plaintiff is not supported by the documentary evidence. Even the site plan prepared by the Patwari on 1.11.2001 as shown in Ex.P6 does not show any rasta leading to the house of the plaintiff… …” The Court further held that the Khasra Girdawris cannot be relied upon in view of the report of the Local Commissioner. It further held that even the site plan given by the Local Commissioner on 1st November, 2001 does not show the Rasta in existence. Thus, issue No.1 was decided against the plaintiff and in favour of the defendants. Issues No.2 to 6 were not pressed by the defendants and hence, they were decided against them. Consequently, suit of the plaintiff was dismissed. 3 Regular Second Appeal No.2714 of 2011 (O&M) The appellate Court below has upheld the findings returned by the trial Court. It further held that there was a difference between the site plan Ex.P1 and Aks Shajra Ex.P4 which pertain to the same land, therefore, the plaintiff had not given proper and correct description of the property in dispute. Both the courts below have analysed the evidence threadbare. They have come to a conclusion that the plaintiff’s evidence does not aspire confidence and he had led no documentary evidence in support of existence of Rasta. Mr. Ashok Kumar Khubbar, Advocate appearing on behalf of the appellant-plaintiff, has stated that the evidence has not been appreciated in the right perspective by both the courts below. It has been contended that Aks Shajra Ex.P4 is an old document which was prepared at the time of consolidation and it does not reflect the subsequent changes, whereas the site plans Ex.P1 and Ex.P5 are almost similar. This submission of counsel for the appellant is liable to be rejected at the outset, as the Local Commissioner in the site plan drawn by him has not reflected the Rasta. Except the self serving site plan and the oral assertion of the plaintiff, there is no other evidence in support thereof. Therefore, the courts below have rightly held that failure on the part of the plaintiff to prove the Rasta by way of documentary evidence disentitles him to the relief sought. This Court in regular second appeal will not re-appreciate or do re-appraisal of the evidence. The view formulated by both the courts below is one, which is possible on the facts of this case. Hence, no interference is warranted in the present appeal, especially when during the course of arguments counsel for the appellant has failed to formulate 4 Regular Second Appeal No.2714 of 2011 (O&M) any question of law much less a substantial one for consideration of this Court. Dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 28, 2011 rps 5