RSA No. 2786 of 1985 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 2786 of 1985 Date of Decision : 12.08.2010 Attar Singh & others .......... Appellants Versus Dharam Pal ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Alok Jain, Advocate for the petitioners. Mr. Kabir Sarin, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal by the defendant / appellants is directed against the judgment and decree passed by the learned lower appellate Court, decreeing the suit filed by the plaintiff / respondent, for injunction restraining the respondent from interfering in use of Rasta and raising any construction thereon. The plaintiff sought injunction against the respondent from encroaching upon the Rasta and interfering in its use on the plea, that the property in dispute is a Rasta, as shown in the sale deed, purchased by him. The defendants being high headed persons were trying to interfere in the rasta by raising construction. The learned trial Court dismissed the suit, by recording as under :- RSA No. 2786 of 1985 -2- ***** “10. Under this issue, the plaintiff was to prove that towards the South of the plot in dispute there is the only Rasta from which the plaintiff can go to his plot. To prove this question, the plaintiff has appeared as PW.1 and he has examined one of his vendors as PW2. He has also relied upon the recitals of the sale deed Ex. P-2 and has placed reliance on the copy of Aksh-shijra Ex.P.3 and copy of Khasra Paimaish Abadi Ex.P.4. The documents Ex.P.3 and Ex.P.4 themselves disprove the claim of the plaintiff. 11. The plaintiff claims that from the property in question, the Rasta claimed by him which is on its South leads to the common chowk. According to him, the chowk is having Bakhal No. 34 Ghar No. 57. He claims that he purchased share from Bakhal No. 9 Ghar No. 21. Towards the South of the property of Bakhal No. 9 Ghar No. 21, there is Ghar No. 20 of the same Bakhal. It is not a passage on the South of the property purchased by the plaintiff. The plaintiff has not even able to prove that the property he purchased from Harbans etc. bears Bakhal No. 9 Ghar No. 21.” 12. xx xx xx xx 13. Before the plaintiff can take any benefit of the recital in the sale-deed that there is a passage towards the South of the property purchased by him, he has to prove the fact that the vendors had such a right of passage on the South of the property sold. Although I have earlier stated that the RSA No. 2786 of 1985 -3- ***** documents Ex. P-3 and Ex.P-4 belie his case, yet the other evidence on record also does not support his claimed.” The learned lower appellate Court reversed the finding of the learned trial Court, and held, that on true interpretation of the sale deed and the documents, led in evidence, it is proved, that the land in dispute is rasta, which is being used by the plaintiff / respondent, and reversed the judgment of the learned trial Court by recording as under :- “7. A perusal of the site plan (Exhibit P1) shows that on the North of the disputed plot is the house of Brij Lal, one of the vendors of the appellant, and on the south is shown the disputed passage and on the further South of the disputed passage is shamlat chowk. It was conceded that beyond the Shamlat chowk on the south was a thoroughfare. It was also conceded that on the North beyond the house of Brij Lal was also a thoroughfare. The respondents made out that the passage to the disputed plot was through the house of Brij Lal. It was in fact tried to be shown that the house of Brij Lal and the disputed passage constituted one single unit before the sale of the plot and as such the passage to the disputed plot was through the house of Brij Lal. 8. Brij lal was examined as PW2. He did not admit that the passage to the plot in dispute was through his house. The respondents examined Tara Chand defendant (DW1) Mangal Singh (DW2) and RSA No. 2786 of 1985 -4- ***** Shiv Charan defendant (DW3) in support of their contention. Tara Chand admitted in cross-examination that there was Kacha boundary wall of the house of Brij Lal. Therefore, there is a clear demarcation between the house of Brij Lal and the disputed property, and there could be no passage for the plot through the house of Brij Lal. Mangal Singh admitted that on the South of the disputed property is a vacant site which could be used as a passage also. Shiv Charan also admitted the existence of a boundary wall around the house of Brij Lal. He would not know if there was a passage on the south of the disputed plot. Consequently, it is not possible to accept the case of the respondents saying that the passage to the disputed plot had been towards North through the house of Brij Lal. If the passage to the disputed plot was not towards the North through the house of Brij Lal, it follows that the passage was towards the South of it because there is no other passage to the property in suit. It was no party's case that the plot in suit ha d no passage at all from any side. I am, therefore, not in agreement with the findings of the trial Court that the disputed property had no access from the South. The findings to that extent are reversed.” The learned counsel for the appellants contended, that this appeal raises the following substantial questions of law for RSA No. 2786 of 1985 -5- ***** consideration :- 1. Whether the judgment of the learned lower appellate Court is outcome of misreading of documentary and oral evidence, therefore, perverse? 2. Whether the learned lower appellate Court could reverse the well reasoned judgment passed by the learned trial Court without meeting the reasoning given by the learned trial Court? In support of the substantial questions of law, the learned counsel for the appellants, vehemently contended that the learned trial Court was right in coming to the conclusion, that the land in dispute was not a rasta, as it was not shown on the Southern side, as mentioned in the sale deed. It was the further contention of the learned counsel for the appellants, that oral evidence was led by the defendants to disprove the case of the plaintiff. Whereas the witnesses examined by the plaintiff had not supported the case. Therefore, the judgment passed by the learned lower appellate Court is result of misreading of the evidence. On the second substantial question of law the learned counsel for the appellant contended, that it is well settled law, that the appellate Court is required to give reasoning to reverse the findings recorded by the learned trial Court, in absence thereof the judgment passed by the learned lower appellate Court can not be sustained. RSA No. 2786 of 1985 -6- ***** On consideration, I find no force in the contentions raised by the learned counsel for the appellant. Reading of the findings, reproduced above, by the learned lower appellate Court, would show that the finding of fact has been recorded on appreciation of evidence. The learned lower appellate Court has given valid reasons for reversing the judgment of the learned trial Court. This Court can not re-appreciate the evidence, as the learned lower appellate Court is the final Court of facts. Finding of fact has been recorded by the learned lower appellate Court, that the land in dispute is a rasta. Even otherwise during the pendency of this appeal, the appellants had given an undertaking, that they would not raise any construction on the disputed land. Thereby indirectly admitting, that the plaintiff was entitled to use the disputed rasta for going to Chowk and further. Since 1985 the parties have maintained the land in dispute as rasta. It is held, that the substantial questions of law raised by the petitioner do not arise in this appeal or in any case are decided against the appellants for the reasons given. Even otherwise, it will not be desirable to disturb the settled position after so many years. No merit. Dismissed. 12.08.2010 (VINOD K. SHARMA) 'sp' JUDGE