R.S.A. No.1316 of 2010(O&M) -1- ... IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1316 of 2010(O&M) Date of Decision : 23.08.2010 Panna Lal and others ......Appellants Vs. Smt. Dhappa Devi and others ......Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Sandeep K. Sharma, Advocate, for the appellants. *** RAKESH KUMAR GARG, J.(Oral) C.M. Nos.8409-10-C of 2010 Though the document, which is in vernacular, sought to be placed on record of this appeal, is already on record as a part of the record of the trial Court as Ex.PW5/1 but, I see no reason to allow the same to be placed on record keeping in view the fact that this document was not proved in accordance with law before the Courts below and, therefore, the same cannot be relied upon. Accordingly, Civil Misc. applications are dismissed. R.S.A. No.1316 of 2010 This is defendants' second appeal challenging the judgment and decree of the Courts below, whereby suit filed by the plaintiffs-respondents for permanent injunction restraining the appellants-defendants from encroaching upon the street as detailed R.S.A. No.1316 of 2010(O&M) -2- ... in the suit, was decreed. The case of the plaintiffs-respondents as emerging out from the plaint is that they are co-owners in possession of a residential house shown by alphabets 'ABCD' in the site plan attached with the plaint and fully detailed and described in para No.1 of the plaint, which was purchased by them from one Budhdev vide registered sale deed dated 24.01.1962 and aforesaid Budhdev purchased the same from Custodian Department vide sale certificate dated 25.10.1961. It is the further case of plaintiffs-respondents that there is a Gali Sare Aam shown by alphabets 'BEFC' in the site plan attached with the plaint towards the Eastern side of the aforesaid house of the plaintiffs-respondents which is in dispute. The aforesaid street in dispute is used by the plaintiffs-respondents for ingress and outgress of their house. The defendants have no concern whatsoever with the street in dispute but they tried to encroach upon the street in dispute. Plaintiffs-respondents raised objections. A dispute arose and in that dispute, the plaintiffs requested the defendants not to encroach upon any portion of the street in dispute but of no use which necessitated Daulat Ram (plaintiff), to file the present suit. The defendants appeared and filed their written statement contesting the suit on the grounds that there is no street as shown by alphabets 'BEFC' in the site plan of the plaintiffs. In fact, the plaintiffs wants to encroach upon the portion of the plots of the defendants just to use that portion as street. There was earlier litigation between the plaintiffs and that earlier suit was decided in favour of the defendants R.S.A. No.1316 of 2010(O&M) -3- ... and the plaintiffs have no cause of action to file the suit and the same deserves to be dismissed. While decreeing the suit, the trial Court held that the street in dispute is in existence on the Eastern side of the house of the plaintiffs which connects the street falling on the Northern and Southern sides of the house of the plaintiffs. Therefore, the appellants have no right to encroach upon any portion of the street in dispute. These findings of the trial Court were challenged by the defendants by filing an appeal before the Lower Appellate Court. However, the aforesaid appeal was also dismissed by the District Judge, Jhajjar vide impugned judgment and decree dated 21.11.2009. Still not satisfied, the defendants have filed the instant appeal. The solitary contention of the learned counsel for the appellants before this Court is that the Courts below have not even taken into consideration document Ex.PW5/1 which was produced on record by the plaintiffs-respondents themselves and, therefore, the findings given are perverse. The contention of the learned counsel for the appellants is absolutely without merit and in fact misleading. The document Ex. PW5/1 was no doubt placed on record but it was not proved in accordance with law and that is why the Courts below have not taken into consideration the aforesaid document. While dismissing the appeal on re-appreciation of evidence, the lower Appellate Court upheld the findings of the trial Court holding that the street in dispute is in existence. The aforesaid R.S.A. No.1316 of 2010(O&M) -4- ... findings of fact has been recorded on the basis of the admission of DW-1 that there was a street Sare Aam in the Western side of the Peer and the aforesaid statement is further corroborated from the site plan Ex. P1, from which it becomes clear that the street which is in existence towards the Western side of the Peer is the same street which falls on the Eastern side of the house of the plaintiffs, clearly establishing that the defendants admit the existence of the street in dispute upto the Northern boundary of Peer. Therefore, the dispute remains regarding the existence of the street in dispute from the Northern boundary of Peer till points 'BE' which is fully proved from the evidence on record produced by the plaintiffs and with the statement of DW-2 who has admitted in his cross-examination that there is a street in the Western side of the plot of Panna Lal who is owner of property No.421 as shown in Ex.P-1. The said plot of Panna Lal is towards Northern side of the Peer. In view of the evidence on record, it cannot be argued on behalf of the appellants before this Court on the basis of the aforesaid document Ex. PW5/1 which is otherwise inadmissible in evidence to say that the findings of the Courts below are perverse. No substantial question of law arises in this appeal. Consequently, the appeal is dismissed. (RAKESH KUMAR GARG) JUDGE 23.08.2010 neetu