IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3353 of 2009 (O&M) Date of decision: 13th July, 2011 Jagtej Singh and others … Appellants Versus Jastinderpal Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Munish Jolly, Advocate for the appellants. Mr. H.S. Diwana, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. Present regular second appeal has been instituted by defendants to the suit. respondent-Jastinderpal Singh had filed a suit for permanent injunction praying that the appellants-defendants and their agents/servants be restrained from causing any interference/obstruction in the common passage/street, shown in red colour in the site plan Ex.P1 attached to the plaint, by raising any construction or in any other manner illegally, forcibly and without following due process of law. The trial Court had dismissed the suit. Aggrieved against the same, the respondent-plaintiff had filed an appeal. The lower appellate Court accepted the appeal and hence, the present regular second appeal has been preferred by defendants to the suit. They are aggrieved against reversal of the judgment of trial Court by the lower appellate Court. Regular Second Appeal No.3353 of 2009 (O&M) Briefly stated, it was pleaded in the suit that respondent- plaintiff is an owner in possession of a residential house shown in green colour whereas house of the appellants-defendants was shown in blue colour in the site plan Ex.P1. There is a passage/street which goes from houses of the parties towards the circular road. It was averred that the doors and windows of the house of plaintiff open in the street in question since long and the said street is commonly used as a passage by the parties to the suit for going towards the village Phirni (circular road) and vice-versa. A grievance was made in the suit that defendants, being strong headed and mighty persons, were intending and threatening to cause interference/obstruction in the said common passage (street) by raising a wall in it at points A-B shown in the site plan Ex.P1 illegally and forcibly, and they had gathered construction material at the spot to fulfill their above mentioned unlawful/illegal design. It was stated that in case defendants are not restrained from doing so, the plaintiff will suffer an irreparable loss. On appearance, the appellants-defendants filed a written statement and questioned the maintainability of the suit and locus-standi of the plaintiff. They also raised an objection that the plaintiff had not approached the Court with clean hands. On merits, it was denied that the plaintiff was owner in possession of the residential house shown in green colour in the site plan Ex.P1. It was stated that the site plan Ex.P1 attached to the plaint is false and frivolous, and the same in no way reflects actual and factual position at the spot. However, they also got prepared a site plan and attached it with the written statement claiming it to be the correct one. They further pleaded that the defendants are 2 Regular Second Appeal No.3353 of 2009 (O&M) owners in possession of the Abadi measuring 0.10 Marlas situated at village Mehmoodpur, Tehsil Bassi Pathana, District Fatehgarh Sahib as per the sale deed bearing Vasika No.335 dated 30th May, 1997. It was further stated that the street shown in red colour in the site plan attached to the plaint is not a common passage, but the same is a Gair Mumkin Abadi where the wall has already been constructed. It was further averred that the Gair Mumkin Abadi is in the ownership and possession of the defendants and therefore, the plaintiff has no concern or connection with the same. A specific denial was made to the averment made in the plaint that the passage (street) leads to the village Phirni (circular road) from the houses of the parties to the suit. Opening of doors and windows of the house of plaintiff in the street was also denied. Common use of the street as a passage used by the parties for going to the Phirni was also disputed. It was further stated that the defendants had already constructed a wall in the area demarcated as a street by the plaintiff, as they are in exclusive possession of the same. The respondent-plaintiff filed replication in which he denied the averments made in the written statement and reiterated the averments made in the plaint. However, in replication the plaintiff stated that “the wall in question has been constructed by the defendants on 15th March, 2002, i.e. after the institution of the present suit and defendants are required to be directed/ordered to remove the same”. After conclusion of the pleadings, the trial Court had drawn the following issues: “1. Whether plaintiff is entitled for permanent injunction as prayed for? OPP 2. Whether suit of plaintiff is not maintainable? OPD 3 Regular Second Appeal No.3353 of 2009 (O&M) 3. Whether plaintiff has not come to the Court with clean hands? OPD 4. Relief.” The plaintiff himself appeared as PW-1. He also examined Subedar Sadhu Singh, Draftsman as PW-2; Dharminder Singh Lamba as PW-3 and Harnek Singh as PW-4, and closed his evidence. The plaintiff furnished an additional affidavit Ex.PW1/A, in which he stated that defendants Jagtej Singh and Hartej Singh had raised a wall in question which is about 2 feet in height and about 15 feet in length just in front of the doors and windows of the residential house of the plaintiff, shown in green colour in the site plan Ex.P1, at about 5.30 p.m. on 15th March, 2002 with the help of Sub Inspector, Dalip Singh and 2-3 constables of Police Station Bassi Pathana. Another application Ex.P1/A seeking temporary/mandatory injunction was also filed. Thereafter, the additional evidence was taken and the plaintiff appeared and was cross- examined regarding construction of the wall. Defendant Jagtej Singh appeared as DW-1; Harwinder Singh Namberdar as DW-2; Arwinder Singh, Deed Writer as DW-3; Om Parkash Sachdeva, Draftsman as DW-4 and Bawa Singh as DW-5. The trial Court held that the testimony of Subedar Sadhu Singh, Draftsman PW-2 is doubtful and the site plan prepared by him also cannot be relied upon. The Court further held that Harnek Singh PW-4 in his affidavit Ex.PW4/A had also not deposed that the wall was constructed on 15th March, 2002 as alleged by the plaintiff. The trial Court further held that the defendants have proved that 10 Marlas land as per the registered sale deed Ex.DW/1 and jamabandi Ex.DW/2 is not 4 Regular Second Appeal No.3353 of 2009 (O&M) a common passage but it is a Gair Mumkin Abadi where the wall was constructed since long time back. The trial Court observed as under: “17. … … … Therefore, in any case plaintiff is required to prove that after he filed suit, the wall was constructed on 15.3.2002. In this regard there is sole testimony of plaintiff only and his witness PW4 has not even stated this fact that the wall was constructed by defendants on 15.3.2002. Even Local Commissioner simply stated that wall has been newly constructed but never stated that it was constructed on 15.3.2002 and in this regard there is no independent evidence available or examined by plaintiff from the village. And since it has come up in evidence that wall already existed in the site plan in dispute, therefore, the suit of plaintiff is certainly infructuous since wall has already been constructed… … …” The lower appellate Court formulated a question for determination of the Court as to “Whether the site in dispute is a passage or Abadi of defendants?” After formulating this question, the lower appellate Court held that the defendants had purchased 10 Marlas of land from Anoop Kaur vide a sale deed Ex.DW1 and as per jamabandi for the year 1999-2000 Anoop Kaur was one of the co- sharers who had sold different pieces of land to different persons. She had sold 29/336th share to the plaintiff. She had also sold a plot to the defendants. Thus, the plaintiff and defendants were held to be co- sharers by the lower appellate Court. Relying upon the description given in the sale deed Ex.DW1, the Court held that the site shown in red colour in the site plan Ex.DW4 cannot be connected to the purchase of 10 Marlas of land by defendants from Anoop Kaur. The lower appellate Court concluded as under: 5 Regular Second Appeal No.3353 of 2009 (O&M) “15. From the above discussion, I am of the considered opinion that site in dispute is not proved to be the abadi of defendants as per the sale deed Ex.DW1. In the site plan Ex.P1, the site shown with red colour has been shown to be leading from village Phirni to common courtyard which is in between the house/property of Harvir Singh, Ranjit Singh, Jastinderpal Singh and Harwinder Singh. This common chowk has also been shown in the site plan of the defendants Ex.DW4 as well. If disputed site be taken as the abadi of defendants, in that case no villager will have the access to this common chowk. The site plan Ex.P1 depicts doors of the house of Ranjit Singh and rooms of plaintiff towards this chowk. The passage to the house of Ranjit Singh and rooms of plaintiff shall also stand blocked if the site in dispute is taken as the Abadi of the defendant. It is a matter of basic knowledge that common chowk in the village is for the use by all the villagers and not for a particular person only. Even the Local Commissioner in his site plan Ex.P2 has shown the common yard which has the doors of some houses opening towards it.” To return the above said finding, the Court gave a reasoning that house of the plaintiff is constructed since long and his doors and windows used to open towards the disputed site. Had the same not been a passage, the defendants would not have allowed the plaintiff to open doors and windows towards that side. The Court further held that the site in dispute is near to a common chowk and not house of the defendants on the eastern side. The lower appellate Court further held that defendants in their site plan had not shown any passage which will facilitate movement of the villagers towards the common chowk. Even 6 Regular Second Appeal No.3353 of 2009 (O&M) the Court held that in the site plan Ex.P1 the chowk appears to be surrounded from all sides by the property of several persons. I have heard counsel for the parties. During the course of arguments, Mr.Munish Jolly, Advocate appearing on behalf of the appellants-defendants, has placed a heavy reliance upon the site plan Ex.DW4, whereas Mr.H.S. Diwana, Advocate appearing on behalf of the respondent-plaintiff has shown me the other site plan Ex.P1. Even from a perusal of site plan Ex.DW4 shown by Mr.Jolly, it is apparent that the passage shown in red colour leads towards the common chowk and by raising a wall at point B to E in site plan Ex.DW4 the appellants- defendants had blocked the doors and windows of the house of respondent-plaintiff. The very fact that the plots have been purchased by the respondent-plaintiff as well as the appellants-defendants from Anoop Kaur and they are co-sharers, leads me to a conclusion that the findings returned by the lower appellate Court are just and appropriate. The fact that the respondent-plaintiff and appellants-defendants are co- sharers was not considered by the trial Court, and thus, the findings given by the lower appellate Court suffer from no infirmity. Once there is no dispute that the respondent-plaintiff and appellants-defendants are co-sharers and both have purchased the property from Anoop Kaur, the entire perspective to interpret both the site plans, i.e. Ex.P1 and Ex.DW4 shall change. Counsel for the parties, during the course of arguments, have laid much emphasis upon the site plan proved by their parties. In regular second appeal, I am not inclined to re-appreciate or do re- appraisal of the site plans as the view formulated by the lower appellate Court is the one which is possible and seems reasonable. Therefore, the forceful argument raised by counsel for the appellants-defendants that 7 Regular Second Appeal No.3353 of 2009 (O&M) this Court should formulate another opinion qua the site plan, is not acceptable as neither the same is permissible within the narrow scope of a regular second appeal nor is pragmatic in the facts and circumstances of this case, as the respondent-plaintiff will have no access to the common chowk. Hence, there is no merit in the present appeal, especially when no question of law, much less a substantial one, has been raised for consideration of this Court, and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 13, 2011 rps 8