RSA No.3205 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3205 of 2009 (O&M) Date of decision: January 19, 2010. Khushi Mohammad ...Appellant(s) v. Nathu ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri Mohd. Salim, Advocate, for the appellant(s). Rakesh Kumar Garg, J. (Oral): This is defendant's second appeal challengeing the judgment and decree of the lower appellate court whereby the suit of the plaintiff/respondent has been decreed and the appellant has been restrained from making any encroachment over the street in question and further a decree for mandatory injunction directing the appellant to remove the wall BC as shown in the site plan Ex.X prepared by the local commissioner and site plan Mark XI produced by the plaintiff/respondent. As per the averments, the plaintiff/respondent was the owner in possession of the house shown in green colour in the site plan Mark X which he had constructed after purchasing the vacant plot vide sale deed dated 15.3.1973. It was further averred that on the northern side of the house of the plaintiff/respondent, a 10 feet wide street shown as ABCD red colour in the site plan, which was also recorded in the sale deed. On the RSA No.3205 of 2009 -: 2 :- northern side adjoining the street, there was the house of the defendant but there was no door/window etc. of the house of the defendant towards the street. The plaintiff had access to his house from this street. The appellant/defendant wanted to encroach upon the street illegally and forcibly and for this reason, he collected the building material and tried to make encroachment upon the street in dispute by raising construction over the same. It was further stated that on 5.10.2000, the defendant illegally and forcibly constructed wall upto the height of 6 feet, 10 feet in length and of thickness of 4 inches at the spot, shown in red colour ABC in the site plan. Hence, this suit. Upon notice, defendant/appellant filed written statement taking preliminary objections. On merits, it was admitted that there is a street of 10 feet width but the site plan Mark X was not correct. It was also admitted that on the northern side of the wall adjoining to the street, there was house of the defendant/appellant. Allegations with regard to encroachment were denied. It was further submitted that the defendant had already made some construction on portion DEFG in the site plan which is part and parcel of his house and was not part of the street. The trial court dismissed the suit. However, while the appellate court allowed the appeal filed by the plaintiff/respondent while allowing the appeal, the appellate court observed as under:- “19. After giving my thoughtful consideration to the rival contentions and going through the record of the case, I am of the considered view that the impugned decree and judgment passed by the learned trial Court are not sustainable. First of all, the learned trial Court RSA No.3205 of 2009 -: 3 :- was required to go into the question as to if the disputed property is part of the street or not. The appellant/plaintiff has produced the sale deed Ex.P6 vide which he had purchased the plot in 1973. In the said sale deed, a 10 ft. wide street has been shown on the northern site of the property purchased by the appellant/plaintiff. The site plan attached with the said statement has also been proved as Ex.P7. Even in the said stated, the street in question has been shown. Further it is an admitted fact that there is house of appellant/plaintiff on the southern side of the property in question, house of defendant on the northern side of the property in question and property of one Ilam Din on the western side of the property in question. The State number 2699 dated 14.9.1979 Ex.PX is the sale deed relating to the property of Ilam Din and the site plan Ex.PY is part and parcel of the said sale deed. The defendant admitted in his cross-examination that Ilam Din had purchased the property from Gafoor, Babu and Barkat and he also admitted that the sale deed relating to the house of Ilam Din Ex.PX. In the said sale deed, 10 Feet wide street, plot of Nathu and Abdulla having shown on the eastern side of the said house. Even in the site plan Ex.PY, the street in question has been shown up to the house of Ilam Din. Therefore, the documentary evidence produced by the RSA No.3205 of 2009 -: 4 :- appellant/plaintiff shows that the said street after crossing in front of the house of the parties was going up to the house of Ilam Din. As already mentioned above, the sale date relating to the house of Ilam Din has been admitted by the defendant in his cross- examination. Otherwise also, such like document is admissible in evidence u/s 13 the evidence Act to prove the existence of the passage in dispute. 20. From the above referred documentary evidence, it is proved that the property in dispute is part and parcel of the street. 21. Since the defendant has admittedly raised the wall shown as DC in the site plan mark XI and the site plan Ex.P2 and shown as DE in the site plan Ex.D9, therefore, it is absolutely clear that the defendant has made an encroachment on the common street. Now the only question which requires to be determined as to if the defendant/respondent should have been directed to remove the said encroachment. The learned trial Court has observed that even the witnesses of the plaintiff admitted that the said construction had been raised by the defendant many years ago but in the opinion of this Court, the findings of learned trial Court in this regard are incorrect. PW-1 Inder Pal Singh Rai, advocate who inspected the spot and submitted his report Ex.P3. He has stated in his RSA No.3205 of 2009 -: 5 :- examination in chief that the wall BC was constructed in the street, half portion of the wall seemed to have been constructed a few days ago and other half portion was quite recently constructing and the building material was still lying at the spot. Even in his report Ex.P3, he has stated that half portion of the wall BC has been constructed a few days ago and the remaining half wall vast new. Therefore, the report of local Commissioner who was appointed on the application made by the defendant/respondent shows that he had made the encroachment on the street in a few days prior to the visit of local Commissioner. The local Commissioner had wasted the spot on 12.11.2000. Similarly, PW-2 Mohd. Shafig has stated in his cross-examination that the said Wall has been concerted about 2/3 years back. His statement was recorded on 9.1.2004. Therefore, as per his version, the said Wall has been constructed in the year 2000 and the instant suit was filed on 2.10.2000. No doubt PW3 Narinder Kumar stated in his cross-examination that the said Wall was 10/15 years old but the said admission made by the said witness is of no consequence when the other evidence on the file shows that the wall had been recently constructed by the defendant. PW4 Nathu made the statement reiterating his case. But in his cross-examination, he RSA No.3205 of 2009 -: 6 :- stated that the Wall has been constructed two days prior to the filing of the suit and thereafter filed the suit. 22. No doubt initially, the appellant/plaintiff brought a suit for permanent injunction restraining the defendant /respondent from making encroachment over the street in dispute. But as per his own admission, the encroachment over the street had been made by the defendant about two days prior to the institution of the suit. However, later on the suit was amended on the ground that the defendant has made encroachment on the street during the pendency of the suit. From the evidence on file, it is made out that the defendant had raised a wall of small height just 2/3 days prior to the institution of the suit and thereafter, he raised the height of the wall. Even if it be assumed that entire wall had been raised by him to/three days prior to the filing of the suit, the same does not disentitle the appellant/plaintiff from claiming mandatory injunction directing the defendant/respondent to remove the said Wall. The defendant/respondent has no right to encroach upon the street in question. Merely because the plaintiff initially brought the suit for permanent injunction, it does not bar his remedy to seek the mandatory injunction if it is ultimately proved that the wall had been raised by the defendant a few days prior RSA No.3205 of 2009 -: 7 :- to the filing of the suit. Both the parties have examined building experts regarding the is of wall in question. PW7 Dev Raj Gupta has proved his report Ex.PW7/A and the site plan Ex.PW7/8 showing that the said Wall was just 3/4 years old. On the other hand, R.C. Nayar examined by the defendant/respondent as DW1 has given his report Ex.D1 to the effect that the said Wall is 30/35 years old. He has proved Ex.D2 site plan of the property in question and photographs Ex.D3 to Ex.D5. The reports of building experts are not of much significance in view of the other evidence showing that the wall had been raised by the defendant a few days prior to the institution of the suit. Both the building experts have given the reports favorable to the party examining them. Moreover, there was no question of existence of wall in dispute since 30/35 years as the street was shown in the sale date deed 14.9.1979 Ex.PX. Defendant Khushi Mohd. while appearing as DW-3 has reiterated his version but during his cross-examination, he has stated that he is owner of the entire street and he has got the documents relating to the ownership of the street but no such document has been placed on file. He has also admitted that when he got the site plan prepared, there was a heap of bricks in front of the gate of his house. RSA No.3205 of 2009 -: 8 :- Therefore, it shows that the building material was available on the spot even when the site plan was got prepared by the defendant. From the evidence on file, it is proved that the property in question is part of the street in dispute and the wall BC shown in the site plan mark X1 and Ex.P2 has been raised by the defendant just a few days prior to the institution of the suit. Therefore the learned trial Court should have issued the mandatory injunction directing the removal of encroachment made in the street in dispute. The learned trial Court should have also granted a decree permanent injunction restraining the defendant from making any further encroachment in the street in question. Hence, the findings of the learned trial Court on issues No.1 to 3, 1-A and 2-A are reversed.” Feeling aggrieved, the defendant has filed the present appeal. learned counsel for the appellant has vehemently argued that the lower appellate court committed error in law as well as on facts while accepting the appeal of plaintiff/respondent because he had failed to prove his case and has ignored the material evidence on record. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal:- 1. Whether the findings of the learned trial court can be reversed by the lower lower appellate court without appreciating the report of local commissioner and report of building expert? RSA No.3205 of 2009 -: 9 :- 2. Whether the courts below have rightly appreciated the evidence on record. I have heard learned counsel for the appellant. The only question which requires to be gone into in this appeal is as to whether the disputed property is part of the disputed street or not. The lower appellate court on appreciation of evidence has recorded a finding of fact that the property in dispute is part and parcel of the street. No contrary evidence on record could be pointed out by learned counsel for the appellant to controvert the finding of fact. Neither any fault can be found in the findings of lower appellate court as reproduced above. No question of law, much less substantial question of law, arises in this case for consideration of this Court. In view of this, I find no merit in this appeal. Dismissed. January 19, 2010. [ Rakesh Kumar Garg ] kadyan Judge