Regular Second Appeal No.4233 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4233 OF 2010 (O&M) DATE OF DECISION: 22 nd MARCH, 2011 Sewa Nand & another .... Appellants Versus Subhash Chander Chadda & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. K. S. Cheema, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) Defendants Nos.1 and 4 are in second appeal after the defendants failed in both the courts below. Respondent No.1 – plaintiff Subhash Chander Chadda filed suit against appellants and proforma respondent Nos.2 and 3 (all defendants). Defendants No.1 to 3 (appellant No.1 and respondent Nos.2 & 3) are partners of firm appellant No.2/defendant No.4. The plaintiff's case is that he is co- owner in possession of a shop comprised of Khasra No.92/3(0-2) depicted in yellow colour by letters E F G H in the site plan annexed with the plaint. Defendants are owners in possession of land comprised of Khasra No.115/2/2/2/1 (15-12), which is situated on Northern side of the plaintiff's shop and is depicted by green colour in the site plan. However, there is a passage between the shop of the plaintiff and the land of the defendants. The said passage is comprised of Khasra No.92/80(0-8). The plaintiff has access to his shop through the said passage. There is also drain passing through the Regular Second Appeal No.4233 of 2010 (O&M) -2- said passage for flow of dirty water. The said passage abuts Anaj Mandi and residents of the Anaj Mandi including the plaintiff use the said passage. They also have easementry right over it. However, defendants threatened to encroach upon the disputed passage illegally. The said passage is depicted in red colour by letters A B C D in the site plan. The plaintiff accordingly sought permanent injunction restraining the defendants from interfering in the disputed passage and from blocking the same and from interfering in any manner over the plaintiff's shop. During pendency of the suit, defendants encroached upon the disputed passage and therefore, the plaintiff by amendment of plaint sought mandatory injunction, directing the defendants to remove the encroachment from the passage. Defendants broadly denied the plaint allegations. The defendants alleged that they are in open, hostile, peaceful and adverse possession of the disputed site for the last about twenty years and have become its owners by adverse possession. Suit of the plaintiff is barred by limitation. Plaint allegations were broadly controverted. It was pleaded that there is no passage intervening the shop of the plaintiff and the property of the defendants. There is no alleged passage around Mandi. Defendant's construction exists since the year 1978-79. Existence of drain for flow of dirty water through the disputed site was also denied. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Dasuya vide detailed judgment and decree dated 12.01.2001 decreed the plaintiff's suit. First appeal preferred by all the defendants has been dismissed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 19.03.2009. Feeling aggrieved defendants No.1 and 4 only have preferred the instant second appeal. Regular Second Appeal No.4233 of 2010 (O&M) -3- I have heard learned counsel for the appellants and perused the case file. Both the courts below have dissected and analyzed the evidence in great details and have recorded cogent reasons to arrive at concurrent finding in favour of plaintiffs-respondents regarding disputed passage. In copy of the Jamabandi Exhibit P-4, disputed land of Khasra No.92/80(0-8) has been depicted to be as passage. Aksh Shajra Exhibit P-5 also depicts the disputed site as passage. Even site plan got prepared by defendants' predecessor depicted the existence of the disputed passage. Report of Local Commissioner made within a month after the filing of the suit depicted that defendants had constructed new wall of old bricks with mud and thereby blocked the disputed passage. Report of another Local Commissioner depicted encroachment done by the defendants over the disputed passage. Even in site plan Exhibit D-1 produced by the defendants, existence of drain for flow of dirty water through disputed site has been depicted, although in the written statement, the defendants specifically denied the existence of the said drain. Existence of the said drain would also depict that the disputed site is passage and is not property of the defendants. Infact the defendants have also not claimed the disputed site to be their property but claimed to be in possession thereof since the year 1978-79 by adverse possession. The defendants have, however, failed to establish their said plea. There are also three to four septic tanks of different persons in the disputed site. This circumstance again depicts that the disputed site is a passage in which occupants of the neighbouring properties have made their septic tanks. If the property had been in possession of defendants since the year 1978-79, they would not have allowed the septic tanks of others to be made there. On the other hand, in towns, such septic Regular Second Appeal No.4233 of 2010 (O&M) -4- tanks are constructed in the adjoining street or passage. Photographs produced in evidence also depicted existence of ventilators of adjoining shops opening towards the disputed site. The photographs also depict water outlets (patnalas) of the adjoining properties falling in the disputed site. If the disputed site had not been passage, the ventilators and water outlets of adjoining properties would not have opened therein. Even defendant No.1 in the witness box admitted the existence of septic tanks and open park area in the disputed site. Affidavit of defendants' predecessor Vijay Kumar and also some other affidavits also proved the existence of the passage of over the disputed property. Vijay Kumar was previous owner of Atta Chakki and sold the same to the defendants in the year 1994. Vijay Kumar while appearing in the witness box categorically stated that the disputed site is a passage. It is thus manifest and there is no room for doubt that the disputed site is a passage and it has been so fully established by overwhelming evidence on record. Concurrent finding recorded by the courts below does not suffer from infirmity, much less illegality or perversity so as to warrant interference in second appellate jurisdiction. In fact finding regarding disputed site being passage is the only finding that can be arrived at on the basis of the evidence on record. The said finding does not give rise to any question of fact, much less question of law or substantial question of law for adjudication in the instant second appeal. Learned counsel for the appellants vehemently contended that in Jamaband Exhibit P-4, one Smt. Bhagwati is depicted to be owner of the disputed site and in her absence, the plaintiff could not claim easementary right of passage. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Bachhaj Nahar Versus Regular Second Appeal No.4233 of 2010 (O&M) -5- Nilima Mandal & Another, 2009(2) Civil Court cases 141 (S.C.). The contention is completely misconceived and unsustainable. In Jamabandi Exhibit P-4, disputed site has been depicted to be passage. There is also other overwhelming evidence as noticed hereinbefore to depict the disputed site to be passage. Courts below have recorded very elaborate reasons and arrived at concurrent finding to this effect. Bhagwati being not party to the suit, the resultant decree would not be binding on her. However, so far as the present parties are concerned, the disputed site is proved to be passage and defendants have illegally encroached upon the same. Suit of the plaintiffs has, therefore, been rightly decreed by the courts below. For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 22.03.2011 'raj'