Regular Second Appeal No.132 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-6.7.2010 Ram Singh ...Appellant Versus Gurmit Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Jagram Singh Cooner, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) The challenge in this regular second appeal, filed by Ram Singh son of Gurbax Singh, appellant-defendant (hereinafter to be referred as “the defendant”), is to the judgment and decree dated 14.6.2008, whereby, the trial Court has decreed the suit for permanent and mandatory injunction, filed by Gurmit Singh and others respondent-plaintiffs (hereinafter to be referred as “the plaintiffs”). The defendant has also assailed the judgment and decree dated 24.8.2009, vide which, his appeal was dismissed as well by the Ist Appellate Court. 2. Tersenessly, the facts, relevant for disposal of the present appeal and emanating from the record, are that originally, the plaintiffs filed the present suit for permanent injunction restraining the defendant from encroaching upon any portion of brick paved public street in question. During the pendency of the suit, the plaintiffs amended the plaint and converted the suit for mandatory injunction directing the defendant to remove the encroachment made by him in the brick paved public street, inter-alia, pleading that the defendant has encroached upon the street, Regular Second Appeal No.132 of 2010 2 despite the order of status-quo of the Court and threatened to raise construction of latrine on it. 3. Levelling a variety of allegations, in all, according to the plaintiffs, the defendant has illegally encroached upon the public street without any legal right, during the pendency of the suit. They asked him to remove the encroachment, but in vain, which necessitated them, to file the present suit. On the basis of aforesaid allegations, the plaintiffs filed the present suit for a decree for mandatory injunction against the defendant, in the manner indicated here-in-above. 4. The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit and mis-joinder of necessary parties etc. On merits, the defendant claimed that the brick paved street is 25 feet 9 inches wide, whereas the plaintiffs have shown its width as 15 feet. The location depicted in the site plan of the street and adjoining house was stated to be wrong. According to the defendant, his house is at a far of distance from the brick paved street in question in another street. One Karam Singh has constructed the underground latrine, which is close from the ground and a person can pass over it. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. 6. In the wake of the pleadings of the parties, the trial Court framed the following issues for trial:- 1. Whether the plaintiffs are entitled to mandatory Regular Second Appeal No.132 of 2010 3 injunction as prayed for?OPP 2. Whether the plaintiffs are entitled to permanent injunction as prayed for?OPP 3. Whether suit is not maintainable in the present form?OPD 4. Whether suit is bad for mis-joinder of necessary parties?OPD 5. Relief. 7. The parties, in order to substantiate their respective pleas, brought on record the oral as well as documentary evidence. 8. The trial Court, on ultimate analysis of the evidence on record, decreed the suit of the plaintiffs, vide impugned judgment and decree dated 14.6.2008. 9. Aggrieved by the judgment and decree of the trial Court, the defendant filed the appeal, which was also dismissed by the Ist Appellate Court, vide impugned judgment and decree dated 24.8.2009. 10. The appellant-defendant still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 11. Having heard the learned counsel for the appellant-defendant, having gone through the record with his valuable help and after considering the matter deeply, to my mind, there is no merit in the appeal. 12. However, the main argument of the learned counsel that the suit for mandatory injunction filed by the plaintiffs was not maintainable, in view of section 91 CPC, is not only devoid of merit, but misplaced as well. No doubt, Section 91 CPC deals with the institution of the suit with respect Regular Second Appeal No.132 of 2010 4 to public nuisances by the Advocate General or with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. At the same time, section 91 (2) CPC further postulates that “nothing in this section shall be deemed to limit or otherwise affect any right of suit, which may exist independently of its provisions.” 13. It is not a matter of dispute that the brick paved street is a thoroughfare public street and the defendant has got no right, title or interest to encroach upon it in any manner. As the plaintiffs have an independent right/cause of action to file the suit, therefore, the simple suit for mandatory injunction filed by them was legally maintainable. Hence, the contrary arguments of the learned counsel for the appellant “stricto sensu” deserve to be and are hereby repelled. 14. All the remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant (defendant), have already been duly considered and dealt with by the Courts below, in this relevant connection. 15. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties and report of local commissioner in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the Ist Appellate Court has recorded the concurrent findings of fact that the disputed street is the public street and the defendant has encroached upon it without any legal right, which is causing obstruction to the public at large. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by Regular Second Appeal No.132 of 2010 5 this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard. 17. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the Courts below, as contemplated under section 100 CPC, in the obtaining circumstances of the instant case . 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 19. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed, with no order as to costs. (Mehinder Singh Sullar) 6.7.2010 Judge AS