RSA No.2414 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2414 of 2008(O&M) Date of decision: 5.5.2009 Birbal Ram ......Appellant Versus Kulwant Rai and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashok Kumar Khunger, Advocate for the appellant. * * * Rakesh Kumar Garg, J. The appellant and the proforma respondent brought the present suit for mandatory injunction directing the defendant-respondent No.1 to close the doors mark A and B opened by him towards the house of the plaintiffs as shown in red colour in the site plan attached with the plaint, with consequential relief of permanent injunction restraining the defendant from using the said gates towards the house of the plaintiffs and further restraining him from interfering into the possession of the plaintiffs over the said house fully detailed in the head note of the plaint. As per the averments made in the plaint, the plaintiffs were owners in possession of one house measuring 1 kanal having boundaries fully detailed in the head note and depicted in the site plan. It was further averred that the defendant has got absolutely no concern either with the ownership or with the possession of the plaintiffs over the said house in any manner. The defendant who is a neighbourer of the plaintiffs and has his house just adjacent to the house of the plaintiff on 7.7.2002 opened illegally and forcibly two doors/gates Mark A and B towards the house of RSA No.2414 of 2008(O&M) 2 the plaintiffs as shown in the site plan. A Panchayat was convened to resolve the dispute between the parties and on 8.7.2002, it passed the award in writing against the defendant asking him to close the said gates but he refused to do so. The defendant started threatening to interfere in the house of the plaintiffs and to use the said gates illegally and forcibly. Hence, this suit. The defendant opposed the suit by raising various preliminary objections. On merits, it was averred that the plaintiffs were neither owners nor in possession of the property in dispute. The site plan placed on record by the plaintiffs was not correct and the site plan got prepared by the defendant depicted the correct position. The defendant denied the opening of alleged gates in the area of the house of the plaintiffs and further claimed that the same were opened in the street and were in existence since 5.9.1995 when the defendant purchased the house from one Udhe Ram and Purkha Ram vide agreement dated 5.9.1995. It was denied that Panchayat passed any award on 8.7.2002. It was claimed that the said writing was prepared by the plaintiffs from the persons inimical to the defendant. It was pleaded that the plaintiffs had no right to ask the defendant to close the door. Dismissal of the suit was prayed for. After appreciating the evidence on record and hearing learned counsel for the parties, the trial Court dismissed the suit holding that the plaintiffs could not establish their right for issuance of mandatory injunction in their favour and against the defendant as claimed. Feeling aggrieved against the judgment and decree of the trial Court, plaintiff No.2 i.e. the appellant filed an appeal which was also dismissed by the District Judge, Ferozepur, who vide impugned judgment and decree dated 12.3.2008 observed as under: “Admittedly, the appellant-plaintiff has laid much stress RSA No.2414 of 2008(O&M) 3 on the writing of the panchayat Ex.PB. It is alleged that on the application of the appellant-plaintiff, the panchayat was convened and this writing Ex.PB came into existence vide which the defendant-respondent was directed to close the doors. It is also the case of the appellant-plaintiff that on 7.7.2002, Kulwant Rai defendant-respondent No.1 illegally and forcibly opened these doors/gates towards the house of the appellant- plaintiff. The stand as taken by the appellant-plaintiff does not seem to be correct. The application on the basis of which the panchayat was convened has not been produced or proved on record. The cross- examination of the appellant-plaintiff is worth mentioning. He has admitted in his cross-examination that the panchayat maintains register for recording proceedings effected by the panchayat, but the panchyat did not record Ex.PB in the said register. It is strange enough that if the panchayat maintains proceedings book or register for recording the proceedings in it, why Ex.PB does not find mention in that register. Moreover, writing Ex.PB cannot be said to be a genuine document. The appellant-plaintiff has also admitted in his cross-examination that he got issued notices to Rajinder, Guddi Devi, Sahab Ram, Sat Dev, but did not issue notice to Gopi Ram and Om Veer Panchayat as they did not belong to his group. From this part of his cross-examination, it is clear that the appellant-plaintiff got prepared the writing Ex.PB by RSA No.2414 of 2008(O&M) 4 collecting his own persons and did not call the persons belonging to the other group. Furthermore, though the appellant-plaintiff is claiming himself to be the owner in possession of the property in dispute, but there is no documentary evidence to prove this fact. The site plan Ex.P1 got proved by the appellant-plaintiff in this regard is not sufficient to confer any title on the appellant- plaintiff regarding the property in dispute. Raj Kumar draftsman PW2 who had prepared the site plan Ex.P1 has admitted in his cross-examination that he did not visit the spot and as such he cannot say whether Ex.P1 site plan is or is not as per the factual position. So the site plan Ex.P1 is not depicting the true picture. On the other hand, the site plan Ex.D1 proved by the defendant- respondent No.1 appears to be a genuine document. DW3 Devi Lal who is a draftsman has prepared this site plan after visiting the spot and prepared the same as per the factual position. The plaintiff-appellant has admitted in his cross-examination that main street has been correctly shown in mark D at point mark C. He further admitted that his house as well as the house of Jagdish plaintiff is correctly shown in mark D. I have perused the agreement Ex.D2 vide which Udhe Ram and Purkha Ram have sold the property to Kulwant Rai. In the said agreement, the passage has been shown towards the western side leading towards the house of Nand Ram, Jagdish and Kulwant Rai. Krishan Lal DW 2 has also deposed about the execution of the agreement RSA No.2414 of 2008(O&M) 5 Ex.D2 and has also deposed about the passage situated towards the western side. That being so, I am of the considered opinion that the findings of the learned lower court on these issues are according to the evidence available on file. The findings are accordingly upheld.” Still feeling aggrieved, the appellant has filed the instant appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the appellant. Both the Courts below on appreciation of evidence available on record have recorded a concurrent finding of fact that there is no documentary evidence on record to support the claim of the appellant that he is owner in possession of the property in dispute. The Courts below have also found as a matter of fact that the site plan Ex.P-1 placed on record by the appellant was not sufficient to confer any right in the appellant since Raj Kumar, Draftsman PW-2 who had prepared the site plan Ex.P-1 had admitted in his cross-examination that he did not visit the spot and as such, he was unable to say whether site plan Ex.P-1 was as per the factual position. Learned counsel for the appellant was also unable to point out any evidence to challenge the aforesaid findings of the Courts below. Thus, I find no merit in this appeal. No substantial question of law has been shown to be arising in this appeal. Dismissed. May 5, 2009 (RAKESH KUMAR GARG) ps JUDGE