R. S. A. No. 3599 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3599 of 2010 (O&M) Date of Decision : September 22, 2010 Dr. Sanjay Kalan .... Appellant Vs. Satish Sharma .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sachin Mittal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 10592-C of 2010 : Allowed as prayed for. C. M. No. 10593-C of 2010 : Application is allowed and Annexure A-1 is taken on record, subject to all just exceptions. Main Appeal : Defendant no.2 Dr. Sanjay Kalan has filed the instant second appeal. Suit was filed by respondent-plaintiff Satish Sharma against R. S. A. No. 3599 of 2010 (O&M) 2 appellant-defendant no.2 and his father I. S. Kalan-defendant no.1 (since deceased and no longer party to the lis). The plaintiff alleged that he is owner in possession of a plot depicted in pink colour with letters ABCD in the site plan, having purchased it vide sale deed dated 04.10.1995. There is 20' wide passage on western side of the said plot, which is meant only for the aforesaid plot of the plaintiff and is not a public passage, as also recited in the sale deed. Farm house of the defendants exists towards south of the plaintiff's plot. Defendants wanted to open gate at Point-X in their farm house so that they could use the aforesaid private passage of the plaintiff illegally and forcibly. The plaintiff accordingly sought permanent injunction restraining the defendants from opening any such gate in order to illegally and forcibly use the dispute passage and from interfering in construction work of the plaintiff over his aforesaid plot. Mandatory injunction to close any such gate was also claimed in case the defendants succeeded in opening the same. The defendants admitted the existence of the disputed passage, but pleaded that the said passage is being used by the defendants and by other persons of the locality for more than 22 years. Gate of property of defendant no.2-appellant already existed towards the said passage, which is being used as street. The defendants also claimed right of easement by prescription as well as necessity. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gurgaon, vide judgment R. S. A. No. 3599 of 2010 (O&M) 3 and decree dated 26.08.2009, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Gurgaon, vide judgment and decree dated 11.08.2010 and thereby, suit filed by the plaintiff-respondent has been decreed partly to the effect that the defendants may install gate in their own wall, but the plaintiff and other residents of Rajiv Nagar Colony would have a right to raise wall on their side to block the access of the defendants to the said passage. It has been directed that defendants would get no right to use the said passage merely be installing gate in their own wall. Feeling aggrieved, defendant no.2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that appellant's farm house also falls in Rajiv Nagar Colony and appellant is also member of Nagar Vikas Samiti, Rajiv Nagar and therefore, appellant also has right to use the disputed passage. It was contended that courts below have found that the disputed passage is not private passage of the plaintiff alone and he is not owner thereof and it is passage of the aforesaid colony. Learned counsel for the appellant referred to statement of PW-3 B. S. Yadav – Ex-President of the Samiti, who proved receipts Ex.D-1 dated 10.09.2004 and Ex.D-2 dated 31.01.2006 regarding payment of some charges by the appellant to the Samiti towards development charges R. S. A. No. 3599 of 2010 (O&M) 4 etc. and depicting the appellant to be member of the Samiti. I have carefully considered the aforesaid contentions, but find no merit therein. Receipts Ex.D-1 and Ex.D-2 are dated 10.09.2004 and 31.01.2006, whereas the suit had been instituted on 18.02.1997. These receipts obtained by the appellant seven and nine years after the filing of the suit do not help the appellant in any manner. No such document depicting the appellant to be member of the Samiti prior to the filing of the suit has been brought on record. On the contrary, the defendants in their written statement did not even plead that their farm house is part of Rajiv Nagar Colony. Consequently, evidence and argument to this effect being beyond pleadings cannot be even entertained. There is also no material to substantiate the said contention. On the contrary, it is proved on record that farm house of the defendants is not part of the aforesaid colony. The colony was developed over land of khasra nos.1867 and 1968. Plaintiff's plot and disputed passage are part of khasra no.1867. However, farm house of the defendants is not part of khasra nos.1867 and 1968. The defendants raised the plea that they have been using the disputed passage for more than 20 years. However, the colony itself was developed in the year 1987 i.e. about ten years before the filing of the suit and therefore, the aforesaid plea of the defendants was patently false and was therefore, abandoned and not pressed before the courts below. The defendants could not acquire right of R. S. A. No. 3599 of 2010 (O&M) 5 easement by prescription as the disputed passage itself did not exist for 20 years before the filing of the suit. In aks shajra, no such passage was depicted. The colony was also not in existence for 20 years before the filing of the suit. So, the question of using the disputed passage by the defendants for 20 years before the filing of the suit does not arise. It is also significant to notice that vide order dated 23.12.1997 i.e. 10 months after filing of the suit, Local Commissioner was appointed to visit the spot. Accordingly, Local Commissioner visited the spot and made report. According to said report, there was pacca wall of the plaintiff at the end of the passage and on the other side thereof, there was also wall of the defendants. It depicted that even till ten months after the institution of the suit, there was no opening from the farm house of the defendants towards the disputed passage. Consequently, it emerges that defendants had not been using the disputed passage at all. Defendants' plea of easement by necessity to use the disputed passage is also completely untenable because admittedly, their land abuts Delhi road and they have access to their land from the said road. The disputed passage was part of khasra nos.1867 and 1968 and was not a passage before the colony was developed. The colony is said to be unauthorized one. The passage has been left for residents of the colony. Defendants' farm house is not part of the colony. Consequently, defendants have no right to use the disputed passage. There is no illegality R. S. A. No. 3599 of 2010 (O&M) 6 in the finding of the lower appellate court to this effect. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this appeal. Accordingly, the appeal is dismissed in limine. September 22, 2010 ( L. N. MITTAL ) monika JUDGE