IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4288 of 2009 (O&M) Date of decision : 26.11.2009 Jog Raj … Appellant Versus Ram Singh and others …Respondents CORAM : HON’BLE MRS.JUSTICE SABINA Present: Mr.Manjul Sud, Advocate for the appellant. Sabina, J. Jog Raj-plaintiff filed a suit for permanent injunction restraining the defendants from interfering in his possession over the house marked as ‘DEFGH’ shown in green colour in the site plan and on the private Rasta as ‘ABCD’ shown in red colour in the site plan. The suit of the plaintiff was dismissed by Addl. Civil Judge (Sr.Divn.) Hoshiarpur vide judgment and decree dated 25.10.2007. In appeal, the Addl. District Judge, Hoshiarpur also dismissed the appeal with costs vide judgment and decree dated 23.9.2009. Hence, the present appeal. The brief facts of the case as noticed by appellate Court in para Nos.2 to 4 of its judgment reads as under:- “2. The case of the appellant/plaintiff is that he is resident of village Dholbaha and defendants also belongs to same village. The plaintiff is owner in possession of land measuring 2 kanals 9 marlas 4 Sarsahies in both khasra numbers bearing khasra numbers 4731/17/15/2 (2-3), and khasra No.4731/17/6/4 (2-6). That the plaintiff has constructed house shown as marked ‘D.E.F.G.’ in green colour in the site plan on khasra No.4731/17/15/2 (2-3) and the plaintiff is residing in the house. That towards western side of the house, the plaintiff has fixed barbed wire and RSA No.4288 of 2009 planted 20 trees of Suel. That the ‘Rasta’ shown as marked ‘A.B.C.D.’ showing in red colour in the site plan is the private ‘Rasta’ of the plaintiff which he has left for his property bearing khasra number 4731/17/6/4 (2-6) to ingress and outgress from the main road of his house. That the defendants have no connection with the private ‘Rasta’ of the plaintiff as well as with the house shown as marked ‘A.B.C.D.E.F.G.’ shown in red colour and green colour. That defendants also wanted to raise construction on the private ‘Rasta; as shown in red colour marked as ‘A.B.C.D.’ in the site plan and also wanted to raise construction on the house of plaintiff shown by mark ‘D.E.F.G.’ by removing barbed wire for which they have no right. The defendants refused to admit the claim of plaintiff, hence, the present suit. 3. Upon notice, the defendants appeared through Counsel and filed joint written statement. The case of the defendants is that site plan of the plaintiff is incorrect and it does not depict the true and correct situation, measurements and boundaries at the spot; that property in dispute is not passage and it is part and parcel of the houses of defendants, that the property marked as ‘BACD’ in an imaginary passage and no such passage exists at the spot; that the suit is bad for non-joinder of all the co-sharers in khasra number 4731/17/6/4; that the plaintiff has not come to the Court with clean hands and he is guilty of suppression and misrepresentation of true facts; that the remedy available for the plaintiff is only to seek partition of his 6 marlas share out of khasra No.4731/17/6/4; that the plaintiff is vendee of the share of Agya Ram and Agya Ram was not in possession of any part of property as alleged; that suit is bad on account of multifariousness and misjoinder of different causes of action and same is liable to be dismissed. 4. The case of the defendant is that plaintiff is exclusive owner of khasra No.4731/17/15/2 (2-3) and 6 marlas area 2 RSA No.4288 of 2009 by purchase from the share of Agya Ram out of khasra No.4731/17/6//4. That the existence of house of plaintiff in khasra No.4731/17/15/2 (2-3) is not disputed. It has been further alleged that plaintiff has his landed property to the east of his house which provided with a passage by the consolidation authorities. The plaintiff has approach to his house from the eastern side. The plaintiff has intentionally not placed on the file complete site plan of the house which could depict the actual existing position of the approach provided to the house of the plaintiff by the consolidation authorities. It has been further alleged that there has never been any approach to the house of the plaintiff from the northern side. Even the doors, windows and openings of the house of the plaintiff are on the eastern side. The plaintiff actually intend to have a short cut passage to his house. The passage provided by the consolidation authorities to the house of the plaintiff is about 80-karams away from the existing house of the plaintiff. The plaintiff has been using and enjoying his house after passing through that passage. It has been further alleged that on the western side of the constructed house of the plaintiff there is khasra no.4731/17/15/1 belonging to the defendants and other co-owners. The plaintiff is not in any manner concerned with the above-said khasra number. It was denied that the ‘Rasta’ marked ‘A.B.C.D.’ is private ‘Rasta’ of plaintiff rather plaintiff is only co-owner to the extent of 6 Marla area by seeking partition. It has been further alleged that vendor of the plaintiff namely Shri Agya Ram was not in possession of any part of the suit property and houses of defendants are existence over the khasra No.4731/17/6/4 and they are enjoying this property as their houses. It has been further alleged that the plaintiff is making illegal interference in their enjoyment and that the houses of defendants are touching on the Tanda- Dholbaha Road. The defendants never threatened to raise construction in the property of the plaintiff bearing khasra 3 RSA No.4288 of 2009 No.4731/17/15/2. The plaintiff has fixed barbed wire fencing and planted trees in khasra No.4731/17/51/1 belonging to the defendants in which the plaintiff has no share at all. It has been further alleged that under the garb of present suit, the plaintiff intends to forcibly create a passage in the property belonging to the defendants. As such, it has been prayed that suit of the plaintiff be dismissed with special costs under Section 35-A CPC.” From the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP. 2. Whether the site plan filed by plaintiff is incorrect? OPD 3. Whether suit is bad for non-joinder of necessary parties? OPD. 4. Whether plaintiff has not come to the court with clean hands? OPD. 5. Relief. After hearing learned counsel for the appellant, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal. The plaintiff had filed the suit for permanent injunction that the defendants be restrained from interfering in his peaceful possession qua passage in dispute shown as ‘ABCD’ in the site plan. Both the courts below after appreciating the evidence led by the parties on record have held that in fact, there was no such passage in existence at the spot. The site plan brought on record by the plaintiff was not believed a correct site plan. The case of the plaintiff is that he had purchased the portion/passage in dispute from Agya Ram vide sale deed dated 22.1.1991. The said portion had been converted into a private Rasta. A perusal of the site plan Exhibit PW/2/A (shown during the course of arguments) reveals that the house 4 RSA No.4288 of 2009 of the plaintiff is shown with letter marked ‘CDEFGH’. The passage ‘ABCD’ leads from the house of the plaintiff on the northern side to the main road. Towards the right, on the Eastern side of the passage, the house of Ram Pal and Om Parkash has been described whereas on the western side of the passage, land of Ram Singh has been described. However, the said site plan is not corroborated by the Aks Shajra (shown during the course of arguments) proved on record as Ex.D1. The existence of the passage has not been shown in the Aks Shajra, as alleged by the plaintiff. Rather, the site plan Ex.D-2 (shown during the course of arguments) is inconsonance with the Aks Shajra. A perusal of the Exhibit D-2 reveals that in case, a passage is drawn on the northern side of the house of the plaintiff, the same would be running through the house of Om Parkash. In these circumstances, the learned courts below had rightly held that the plaintiff had failed to establish his case. No substantial question of law arises for consideration in this appeal. Dismissed. [ SABINA ] JUDGE 26.11.2009 sd 5