RSA No. 3517 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 11055-C of 2008 and RSA No. 3717 of 2008 (O&M) Date of Decision: September 17, 2009 Subhash and another ...... Appellants Versus Parbhu Ram and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.S.K.Jain, Advocate for the appellants. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit filed by the respondents under Section 91 of the CPC for a mandatory injunction directing the appellants to remove their encroachment from public street No.812 situated in village Bansi, Tehsil Rania, District Sirsa. At the very outset it would be appropriate to deal with Civil Misc.Application No. 11055-C of 2008 for placing on record the alleged compromise dated 12.3.2002 between the appellants and the private respondents. In my opinion even if this application is allowed and the said compromise is permitted to be read into evidence it could not improve the RSA No. 3517 of 2008 (O&M) 2 prospects of the appellants since any compromise with respect to public street cannot be made between private parties. The following questions have been proposed:- 1. Whether the judgment and decree passed in Civil Suit No. 1406-C of 1995 titled Om Parkash versus Subhash etc. will operate as res judicata or not? 2. Whether the learned Courts below have erred in law in not framing the issue as to whether the construction made by the appellants is part and parcel of Khasra No.905 or not? 3. Whether the learned Courts below have erred in law in not taking into consideration the report dated 12.02.1996 Ex.D-2 and field book Mark -A of Khasra No. 905 or not? 4. Whether the judgment and decree passed by the learned Courts below are perverse and cannot be sustained in law or not? 5. Whether the report of the Local Commissioner could be relied upon being contrary to Volume I,Chapter I-M (i)- Procedure in “Hadd Shikni” Cases of Rules and Orders of Punjab and Haryana High Court or not? 6. Whether the map o the village (Ex.P-1) could be relied upon without corroboration from revenue record or not? It is seen that questions No. 2, 3, 4 and 6 are pure questions of fact. The Courts below have relied upon the statement of the Halqa Patwari, the Aks shajra and the Field Book as per which the street in dispute was supposed to be 33 feet wide. The Courts have also relied upon the report of the Local Commissioner Sh. Rakesh Sharaf, Advocate, Sirsa who has reported that street in dispute is now only 11 feet wide. He has further reported that the construction made by the appellants was newly erected and, most interestingly that within the said construction was a telephone pole and under water sewer and drainage. No positive evidence was led by the appellants to prove what was the extent of Khasra number 905 (owned RSA No. 3517 of 2008 (O&M) 3 by them and bordering the street in question). In my opinion the findings recorded on questions No.2, 3 4 and 6 cannot be said to be either based on no evidence or on such a perverse reading of the evidence so as to render them liable for interference under Section 100 CPC. No arguments have been advanced upon question No.5. With regard to question No.1 the learned lower Appellate Court has rightly held the suit to be not barred by res judicata since in the earlier litigation the Gram Panchayat was not a party. Consequently this appeal is dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE September 17, 2009 sunita