R.S.A. No. 2668 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2668 of 2006 (O&M) Date of decision: 29.1.2009 Bal Kishan alias Kishan ....Appellant Versus Dheera @ Randhir and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Sanjiv Gupta, Advocate, for the appellant. Mr. Maharaj Kumar, Advocate, for respondent No. 1. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 29.11.2005 and 27.5.2006 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for mandatory injunction with a consequential relief of permanent injunction stands decreed. The plaintiff/respondent brought a suit on the plea that during the consolidation procedings, he was allotted a bara measuring 33'x40.9” in village Dholgarh, Tehsil and District Karnal. The case set up was that between the baras of the parties, a six feet wide street had been left at the time of allotment. Out of the said gali, the appellant/defendants encroached upon 3 feet thereby reducing R.S.A. No. 2668 of 2006 (O&M) -2- the width to half. Mandatory injunction was sought directing the appellant/defendants to remove the encroachment from the street. It was further the case set up by the plaintiff that the appellant/defendants were adamant to further encroach upon three feet of the land of the plaintiff/respondent and thus, relief of prohibitory injunction was also claimed. The suit was contested by the appellant/defendants, wherein preliminary objection was taken that the plaintiff had not locus standi to file and maintain the suit. Plea was also raised that the plaintiff had not come to Court with clean hands. The jurisdiction of the Civil Court to entertain and try the suit was also challenged. On merit, it was denied that there was any encroachment by the appellant/defendants. It was claimed that khor and boundary wall along with hand pump was installed by the defendants and it was still in existence. The construction alleged to be encroachment was said to be 25 years old. The defendants asserted that they wanted to demolish the old construction by raising new construction at the same place. The width of the gali was 5'-6” and not 6', as claimed by the plaintiff/respondent. The learned Courts below on appreciaion of evidence have recorded a concurrent finding of fact that the plaintiff has encroached upon 3' of the street and consequently, the suit filed by the plaintiff stands decreed. The learned counsel for the appellant raised following substantial questions of law arise for consideration by this Court: - “1. Whether the judgment and decree passed by R.S.A. No. 2668 of 2006 (O&M) -3- the learned Courts below is outcome of misreading of evidence brought on record and, therefore, perverse? 2. Whether the learned Courts below were justified in rejecting the documentary evidence placed on record by way of Ex. DW-3/3 and rely upon the report Ex. P-2, which was not proved in accordance with law?” This Court on 28.7.2006 was pleased to pass the following order: - “After arguing the case for some time, learned counsel for the appellant contends that even if the case of the respondents is accepted in toto, the house constructed by the appellant in his bara cannot be demolished so long as a street with six feet width is provided and made operational in front thereof. It is contended that if the report Ex.P2 is accepted, still only a decree of permanent injunction can be passed and not that of the mandatory injunction. He contends that the aforesaid limited clarification may be made by this Court by calling upon the respondents at the cost of the appellant. Subject to deposit of Rs.10,000/- by the appellant within two weeks from today, let notice of motion issue to the respondents for 19.9.2006. Dasti only. To be shown in the urgent cases.” Sum of Rs.10,000/- (Rupees ten thousand only) stands deposited, which the respondents are permitted to withdraw, from the Court. The learned counsel for the plaintiff/respondents contends the statement made by the appellant before this Court on 28.6.2006 and states that, in fact, there is encroachment of 3' by the defendant/appellant, which has to be removed and he is to be further R.S.A. No. 2668 of 2006 (O&M) -4- restrained from using his bara as passage. In view of the stand taken by the learned counsel for the plaintiff/respondents, the learned counsel for the appellant contends that in the present case, the substantial questions of law, as framed, deserve to be answered in favour of the appellant, as the learned Courts below have ignored Ex. DW-3/3 i.e. the report of Patwari, which was prepared on the spot in the presence of the parties and stood duly proved. This contention of the learned counsel for the appellant cannot be accepted. The learned Courts below were right in holding that no reliance could be placed on Ex. DW-3/3 as it was contrary to the case set up by the defendant/appellant. The site plan Ex. DW-3/3 prepared by DW-3 was not as per the site plan, attached with written statement by the defendant, in support of his defense. The construction and hand pump which were shown to be present at the spot, have not been shown. The learned Courts below rightly observed that DW3 did not consult the revenue record and was not even aware of the facts. Therefore, the report Ex. DW-3/3 was not considered. The challenge to Ex. P-2, also cannot be accepted. The report Ex.P-2 was submitted by the Local Commisioner, appointed by the Court, to which neither of the parties file any objection. In absence of the objections having been filed to the report of Local Commissioner, appointed by Court, the same was accepted and read in evidence. It is not correct on the part of the defendant/appellant to contend that the learned Courts below wrongly relied on Ex. P2. The substantial questions of law, as framed, therefore, deserve to be answered against the appellant/defendant, as it cannot be said that R.S.A. No. 2668 of 2006 (O&M) -5- the judgment and decree passed by the learned Courts below is outcome of misreading of evidence or is outcome of taking into consideration inadmissible evidence as contended. No merit. Dismissed. (Vinod K. Sharma) Judge January 29, 2009 R.S.