CR No.6136/2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CR No.6136/2011 Date of decision: 22.11.2011. Ishwar Dass ....................Petitioner v. Lal Chand .....................Respondent Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.Yogesh Goyal,Advocate for the petitioner. Mr.RK Shukla,Advocate for the Caveator/respondent. Jaswant Singh.J.(Oral) Petitioner/plaintiff has assailed the orders dated 16.5.2011 (P1) and the appellate order dated 30.8.2011(P2) whereby in a suit for injunction his application under Order 39 Rules 1 and 2 CPC seeking temporary injunction has been dismissed. Briefly noticed the facts giving rise to the present revision petition are that petitioner/plaintiff has two brothers namely Lal Chand- defendant(respondent herein) and Narain Dass. After the death of their parents a family settlement regarding the ancestral property was effected between them on 27.6.2007 and the total land was divided into two partitions. Area of one portion was 813 square yards and the area of other portion was 1329 square yards. As per family settlement each portion viz. 813 square yards and 1329 square yards was further divided amongst three brothers in equal share and in this manner 271 square yards i.e. 26'3”x 92 square feet out of portion measuring 813 CR No.6136/2011 2 square yards fell to the share of each brother and land measuring 443 square yards fell to the share of each brother out of second portion measuring 1329 square yards. All the three brothers had taken and were in continuous possession of their respective share. It was alleged by the plaintiff-petitioner that a passage shown with red colour was not owned by any one and was kept as it was. It was further alleged that this passage was in existence since long and it is the only passage through which plaintiff can approach his field. It was also alleged that defendant-Lal Chand and Narain Dass have no concern with the said passage but in order to grab the said passage defendant-respondent was bent upon to encroach upon the said passage, obstruct plaintiff from using aforesaid passage and block it forcibly and illegally in order to cause hindrance in use of the passage by the plaintiff. Upon notice defendant filed written statement stating therein that family partition took place between the parties which was reduced into writing and that a site plan was got prepared from Sh.Jatinder Singh approved Draftsman from Nabha on 27.6.2007 in the presence of respectables of locality and plaintiff, defendant and Narain Dass had appended their signatures/ thumb impressions upon it. However, the existence of alleged passage was denied. It was further alleged that plaintiff himself had got prepared false map by alleging said passage of five feet and that under the garb of present suit plaintiff-petitioner wanted to grab the land of the defendant-respondent. After hearing both sides the learned trial court prima facie found that it could not be said that there is a passage of five feet in width as shown with red colour in the site plan attached with the plaint for approaching the field of plaintiff. Accordingly, the injunction application filed by the petitioner was dismissed. In appeal, the learned Additional Distt.Judge affirmed the order passed by the learned trial court. It is submitted by the learned counsel for the plaintiff petitioner that both the courts below have dismissed the application of CR No.6136/2011 3 the petitioner without appreciating the admitted facts of the case and the actual situation prevailing on the ground. After hearing the learned counsel and perusing the impugned orders, I find no illegality or perversity in the exercise of discretion by the courts below. Both the courts below have prima facie found that in the site plan meant for plaintiff there exists no passage, as claimed by the plaintiff and in the absence of any passage plaintiff cannot claim injunction regarding that passage. For the reasons stated above,finding no merit in this revision petition the same is hereby dismissed. However, nothing stated above shall be taken as an expression of opinion on the merits of the case. 22.11.2011 (Jaswant Singh) joshi Judge