R.S.A.No. 1590 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1590 of 2009 (O&M) Date of decision: 30.11.2009 Kaka Singh others ......Appellants Versus Jeet Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Narender Lucky, Advocate for Mr.G.S.Nagra, Advocate, for the appellants. **** SABINA, J. Plaintiffs-respondents filed a suit for possession, which was decreed by the Additional Civil Judge (Sr.Divn.), SAS Nagar, Mohali vide judgment and decree dated 21.2.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, vide judgment and decree dated 8.1.2009. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “ The brief facts of the case are that parties to R.S.A.No. 1590 of 2009 (O&M) 2 the suit are the permanent residents of village Kambali and there is passage of 11 feet in width between the bara of Bachan Singh and a Khasra No.92 (0-5) allotted to the defendants during consolidation which is shown as street ABCD in the attached site plan, in which the defendants have raised bath room and kitchen shown as Y and X respectively. The bara of Bachan Singh is within the abadi of the vilalge. This passage is used by the plaintiffs to reach their house and baras. The defendants have encroached upon the said passage by raising pucca construction marked as X and Y in the passage in question and have closed the passage by encroaching 9 feet in the said street, to which they have no right. The plaintiffs requested the defendants many a times to remove their encroachment but they refused, hence the suit. 3. Upon notice, the defendants appeared and filed written statement admitting the existence of the passage of 11 feet as alleged but according to them the same has been wrongly shown in the site plan as ABCD. According to them this passage, in fact, existed at a distance of 10 feet from points AD towards west and Bachan Singh recently encroached upon it by construction a new boundary wall. The bath room and R.S.A.No. 1590 of 2009 (O&M) 3 kitchen of the defendants are in existence for the last 15 years. The passage which has been encroached upon by Bachan Singh was used by the plaintiffs. The defendants have not encroached upon the passage in question by raising the construction as alleged. There is a Hand pump of the defendants in between point X and Y which is more than 15 years old. The plot of the defendants extends 10 feet towards west of their khasra No.92 in which they have bath room and kitchen. After denying other averments of the plaint, it has been prayed that suit of the plaintiffs be dismissed.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs are entitled to possession after demolishing the encroachment? OPP 2. Whether the plaintiffs are entitled to permanent injunction as prayed for ? OPP 3. Whether the plaintiffs are not approached the Court with clean hands? OPD 4. Relief. After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for possession that the R.S.A.No. 1590 of 2009 (O&M) 4 defendants be directed to remove the encroachment made by them in the street comprised in Khasra No.62. As per the report of the local commissioner, the defendants had encroached upon Khasra No.62, which was described as gair mumkin rasta (passage) owned by the Panchayat. The defendants had filed objections against the report of the local commissioner and the learned Additional District Judge in the impugned judgment has observed that a perusal of the interim order dated 21.9.2006 reveals that the counsel for the defendants had stated that he would press the objections filed against the report of the local commissioner in case necessity arose after cross-examination of the local commissioner. The local commissioner was cross-examined at length and thereafter, the objections were never pressed by the appellants-defendants. In these circumstances, the Courts below rightly decreed the suit of the plaintiffs as the defendants were found to have encroached upon the passage in dispute by raising construction thereon. The plea taken by the defendants that, in fact, Bachan Singh had encroached upon the passage in dispute, had not been established by them. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 30, 2009 anita