RSA No.2437 of 2009 (O & M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2437 of 2009 (O & M) Date of Decision: 01.02.2011 Ved Parkash ……Appellant Versus Gram Panchayat Village Deegh …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. K. B. Sharma, Advocate for the appellant. Mr. Vimal S. Mann, Advocate for the respondent. L.N. MITTAL, J (ORAL) Plaintiff-Ved Prakash, who was successful in the trial Court, but has been non-suited by the lower appellate Court, has filed the instant second appeal. Plaintiff was allotted plot measuring 100 square yards comprised of khasra no.43/21/11 vide registered allotment deed dated 31.03.1982 by State of Haryana. He was provided passage measuring 11’ x 60’ depicted by letters ‘EFGH’ in red colour in the site plan for access to his said plot. Plaintiff has raised construction in the said plot. Defendant-respondent Gram Panchayat has constructed Chopal towards west of the plaintiff’s plot and has also covered the aforesaid passage on the assurance that the plaintiff would be provided passage of same size for his plot from southern side of Chopal. However, in spite of many requests including RSA No.2437 of 2009 (O & M) - 2 – recommendations by Block Development and Panchayat Officer (BDPO) and by Deputy Commissioner, defendant-Gram Panchayat did not provide any passage for the plaintiff’s plot. Ultimately, defendant Gram Panchayat rejected the plaintiff’s request, necessitating the filing of the instant suit seeking declaration and mandatory injunction for providing passage measuring 11’ x 60’ for the plaintiff’s plot. Defendant in his written statement admitted allotment of the plot to the plaintiff. However, the defendant broadly controverted the other plaint allegations. It was denied that disputed site was given as passage to the plaintiff. It was pleaded that Choppal for backward classes has been constructed by defendant on its land and the disputed site is not a passage. Plaintiff cannot claim any passage as a matter of right from the defendant nor BDPO or Deputy Commissioner can compel the defendant Gram Panchayat to give passage for the plaintiff’s plot out of Panchayat land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Faridabad vide judgment and decree dated 29.03.2008 decreed the plaintiff’s suit. However, first appeal preferred by defendant has been allowed by learned District Judge, Faridabad vide judgment and decree dated 07.01.2009 and thereby plaintiff’s suit stands dismissed. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. On 17.08.2010, following order was passed:- RSA No.2437 of 2009 (O & M) - 3 – “The plaintiff-appellant claims that there is no passage for approaching the house of the plaintiff- appellant. Learned counsel for the defendant-respondent contends that site plan Annexure P-1 annexed by the appellant is not correct. It is also stated that the plaintiff- appellant should not claim ownership or title over the passage that may be provided to him by the defendant- respondent Gram Panchayat. Learned counsel for the plaintiff-appellant concedes that the plaintiff-appellant would not claim title or ownership over the passage. Learned counsel for the respondent prays for adjournment to seek instructions regarding the passage that may be provided for the house of the appellant. Adjourned to 07.09.2010.” Learned counsel for the defendant-respondent states that pursuant to aforesaid order, defendant-respondent has not given instructions to the counsel for providing any passage from the plaintiff’s house. Learned counsel for the appellant vehemently contended that there is no passage for the plaintiff’s house and the defendant has constructed Chopal on the passage which earlier existed and was being used by the plaintiff for access to his house and, therefore, the plaintiff has to be provided some passage for his house. Reference was made to resolution dated 07.07.2000 Ex.DW- 1/2 passed by Gram Panchayat thereby offering passage to the plaintiff from northern side out of Panchayat land. Vide this RSA No.2437 of 2009 (O & M) - 4 – resolution, BDPO was requested to inspect the spot and to solve the problem of the plaintiff for the passage. It was also contended that BDPO inspected the spot and made report Ex.P-8 recommending passage for the plaintiff. BDPO also sent letter EX.P-7 to Deputy Commissioner recommending the passage for the plaintiff’s house, but in spite thereof, defendant-respondent has refused to provide passage for the plaintiff’s house. On the other hand, learned counsel for defendant- respondent contended that plaintiff cannot claim passage as a matter of right from the defendant. It was also contended that no passage was allotted to the plaintiff vide allotment letter Ex.P-2 whereby plot was allotted to him and plaintiff cannot claim ownership over any passage. It was also submitted that plaintiff has made alteration in allotment letter Ex.P-2 by changing plot No.10 to Plot No.11. I have carefully considered the rival contentions. Insofar as contention of counsel for respondent that plaintiff has changed Plot No.10 to Plot No.11 in the allotment letter is concerned, the same deserves to be rejected outrightly being completely beyond pleadings and evidence. On the contrary, even in jamabandi for 1996-97, plaintiff has been recorded to be owner in possession of plot No.11. In the written statement, factum of allotment of the aforesaid plot to the plaintiff as pleaded by him has not been disputed. It is thus apparent that the plaintiff was allotted plot No.11 as claimed by him. In fact, his house also exists there as admitted by defendant’s Sapranch in the witness box. The aforesaid contention is thus completely frivolous and meritless. RSA No.2437 of 2009 (O & M) - 5 – Defendant’s Sarpanch admitted in the witness box repeatedly that there is no passage for access to the house of the plaintiff existing in his aforesaid plot. The plaintiff cannot be left without any passage for his house. The plot was allotted to him under Government Scheme meant for poor persons. The plaintiff after allotment of the plot constructed his house therein. However, now he is being denied any passage for the said house. It is undisputed position (as also admitted by defendant’s Sarpanch in the witness box) that no passage whatsoever exists for the said house of the plaintiff. Earlier he was having access to his house through the land on which Choppal has now been constructed by the defendant. Consequently, the plaintiff is entitled to passage for his house. Counsel for appellant-plaintiff has already stated that the plaintiff would not claim title or ownership over the passage that may be provided for his house. Consequently, the contention of counsel for respondent that appellant cannot claim ownership over the passage also becomes redundant. Inspite of order dated 17.08.2010 as reproduced hereinbefore, defendant-Gram Panchayat is adamant in not providing any passage for the plaintiff’s house. This conduct of defendant- Gram Panchayat is strongly deprecated. Plaintiff appellant is facing hardship for the last 10 years, but defendant-respondent which is supposed to be working for the welfare of the people of the village is not responding to the plaintiff’s problem, although even BDPO and Deputy Commissioner made favourable recommendation. The plaintiff deserves to be provided requisite passage for his house and RSA No.2437 of 2009 (O & M) - 6 – the defendant-Gram Panchayat cannot abdicate its responsibility. The plot was allotted to plaintiff by defendant-Gram Panchayat. The next question that arises for determination is regarding the width of the passage. The plaintiff-appellant has claimed passage of 11 feet width. However, in my considered opinion, passage of 6 feet width would be just and appropriate. Learned lower appellate Court adopted completely perverse approach in declining passage for the plaintiff’s house inspite of the fact that admittedly there is no passage whatsoever for the plaintiff’s house. Consequently, following substantial question of law arises for determination in this second appeal:- “ Whether approach of lower appellate Court in declining passage for plaintiff’s house, when there is no passage for the house, is illegal and perverse and, therefore, not sustainable?” For the reasons already recorded, answer to this question is in favour of the appellant. As a necessary consequence, the instant appeal is allowed and judgment and decree of the lower appellate Court are set aside and judgment and decree of the trial Court are modified and plaintiff’s suit is decreed partly directing defendant-respondent- Gram Panchayat to provide appropriate passage of at least 6 feet width for the plaintiff’s house. Needful be done within two months from today. The plaintiff shall only be entitled to use the passage, but shall not claim title or ownership over the passage. RSA No.2437 of 2009 (O & M) - 7 – (L. N. MITTAL) JUDGE 01.02.2011 A.kaundal