RSA No.2734 of 1987 (O&M) and -1- RSA No.2833 of 1987 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 7.4.2010 1. RSA No.2734 of 1987 (O&M) Akhara Braham Buta , Amritsar …Appellant VERSUS Shiromani Gurdwara Parbandhak Committee, Amritsar and others …Respondents 2. RSA No.2833 of 1987 (O&M) Akhara Braham Buta , Amritsar …Appellant VERSUS Shiromani Gurdwara Parbandhak Committee, Amritsar and others …Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Sandeep Chouhan, Advocate for the appellant. Mr. Sukhbir Singh, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. Both these appeals are interconnected. Contesting RSA No.2734 of 1987 (O&M) and -2- RSA No.2833 of 1987 (O&M) parties and properties in dispute are common and issues involved in both the appeals are identical, hence, with the consent of the parties both the appeals are being taken up together and being decided by this one and common judgment. 2. RSA No.2734 of 1987 is filed by the plaintiff/appellant challenging the judgment and decree dated 1.9.1978 passed by the learned trial Court in Case No.23 of 1978 as well as judgment and decree dated 6.3.1987 passed by the learned first Appellate Court/Addl. District Judge, Amritsar in Civil Appeal No.207 of 1978. Both the Courts below have dismissed the suit of the plaintiffs (herein appellant) for mandatory injunction directing the defendants to close the gate and to refrain from trespassing on the vacant site belonging to the plaintiff bearing No.339 as shown in the map attached with the plaint. 3. RSA No.2833 of 1987 is filed by the plaintiff/appellant challenging the judgment and decree dated 4.10.1983 passed by the learned trial Court in Case No.43 of 1983 and against the judgment and decree dated 6.3.1987 passed by the first Appellate Court/Addl. District Judge, Amritsar in Civil Appeal No.187 of 1983/1986 dismissing the suit of the plaintiff seeking permanent perpetual injunction restraining the defendants from opening any window or door facing the land belonging to the plaintiff bearing khasra No.339. 4. In brief, plaint allegations in both the suits are that plaintiff is the owner of the property bearing khasra No.339 and defendants want to trespass on the land of the plaintiff without any authority or right. RSA No.2734 of 1987 (O&M) and -3- RSA No.2833 of 1987 (O&M) 5. Defendants contested the suit by saying that members of the public visiting the Gurdwara have matured easementary right to use the property bearing khasra No.339 belonging to the plaintiff. Both the Courts below have dismissed the suit of the plaintiff. Both the Courts below have held that plaintiff is the owner of the property bearing khasra No.339. However, in Suit No.23/1978, both the Courts below have held that it is not proved as to if the defendants illegally opened the gate in the wall marked as D & E; rather it is proved that the gate is in existence for more than 20 years and the same is being used by the general public and the defendants by passing through khasra No.339. 6. In Suit No.43/1983, learned trial Court has held that door and the window shown at point ‘A’ in the wall of the property of the defendants were there before the suit was filed and no encroachment whatsoever has been made by the defendants over the land bearing khasra No.339 belonging to the plaintiff; therefore, the plaintiff is not entitled to any relief of injunction. 7. I have heard learned Counsel for the parties and perused the record. 8. For just and fair adjudication of the present appeals, substantial questions of law arises is as under:- As to whether plaintiff is entitled for relief of injunction in the event plaintiff is found owner in possession of the property bearing khasra No.339 and no rights by prescription is found to be established in RSA No.2734 of 1987 (O&M) and -4- RSA No.2833 of 1987 (O&M) favour of the defendants? 9. Answer to substantial question of law:- Undisputedly, both the Courts below in both the suits found plaintiff/appellant as owner of the property bearing khasra No.339. Undisputedly, in both the cases, no right was found to be established in favour of the defendants/respondents by both the Courts below. In Suit No.43/1983, learned trial Court has held that plaintiff is the owner of the property bearing khasra No.339 and defendants have not encroached upon land of the plaintiff. In Suit No.23/1978, both the Courts below have not found any right established in favour of the defendants or visitors of Gurdwara. 10. Undisputedly, plaintiff and respondents are religious institutions. Plaintiff’s grievance is that by opening window and door towards the plaintiff’s property defendants want to trespass over the property of the plaintiff. Defendants are not claiming any right whatsoever on the property of the plaintiff. However, as per defendants, visitors of Gurdwara have right to use the plaintiff’s property as they have been using it for last more than 15 years. 11. On being asked, learned Counsel for the respondents stated that although no easementary right could be matured in favour of the defendants, however, since public/visitors are using property in dispute as shortcut to reach Gurdwara from the market, hence, plaintiff cannot stop the public. He further submitted that both the suits were rightly dismissed by both the Courts below. 12. In my humble opinion, merely because someone find convenient to use the property as ‘rasta’ does not mean plaintiff RSA No.2734 of 1987 (O&M) and -5- RSA No.2833 of 1987 (O&M) cannot restrain them by way of injunction. This Court is conscious about the fact that relief of injunction is equitable relief. Defendants could not establish any right while title of the plaintiff is proved. Hence in view of the above, suits of the plaintiff for prohibitory injunction against the defendants/respondents ought to have been decreed restraining them not to interfere in the possession of the plaintiff over the property in dispute directly or indirectly, personally or through their agents. Substantial question of law is answered accordingly in favour of the plaintiff/appellant. 13. Both the appeals are allowed. The judgments and decrees of both the Courts below are set aside. Suits for perpetual prohibitory injunction restraining the defendants not to interfere in the possession of the plaintiff over the property in dispute are decreed. No order as to costs. 14. A photocopy of this order be placed on a connected case. ( ALOK SINGH ) 07th April, 2010 JUDGE ashish