R.S.A.No. 3272 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3272 of 2009 (O&M) Date of decision: 9.9.2009 Hari Singh through his L.Rs and another ......Appellants Versus Daya Nand and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Jatinder Nara, Advocate, for the appellants. **** SABINA, J. Plaintiffs Hari Singh and Kitab Singh filed a suit for permanent injunction and mandatory injunction, which was decreed by the Civil Judge (Sr.Divn.) Jhajjar vide judgment and decree dated 7.3.2007. In appeal, the said judgment and decree were set aside by the Additional District Judge, Jhajjar vide judgment and decree dated 13.5.2009. Hence, the present appeal by the plaintiffs. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The case set up by the respondents-plaintiffs R.S.A.No. 3272 of 2009 (O&M) 2 was that a passage/closed street marked by letters ABCD shown in red colour in the site plan Ex.P-3 situated within the revenue estate of village Humayupur was reserved by respondents/plaintiffs and Dharam Singh son of Dod Ram and Mange Ram son of Rama Nand jointly since the year 1970 for ingress and outgress to their property, which is owned and possessed by them as their houses are abutting to the street in dispute, which is a private street. Respondent/plaintiff No.1 has constructed a bathroom and respondents/plaintiff No.2 has constructed latrine and bathroom in the street in dispute in front of their respective houses. In the North of the street in dispute, house of the appellants/defendants is situated and in the North of their house, there is a common passage and doors of the house of the appellants/defendants opened in the common passage and they are using the same for all intents and purposes. In the night of 14.1.2004, appellants/defendants clandestinely opened a door of their house in the Southern side which opens in the street in dispute and no frame has been affixed in the said door. The appellants/defendants have no right to do so and regarding which they have raised objections. Appellants/defendants No.4 and 5 filed an application before the BDPO, Matanhail for demolishing the R.S.A.No. 3272 of 2009 (O&M) 3 bathroom and latrine of the respondents/plaintiffs but in vain. Hence, this suit. 3. Appellants/defendants have filed joint written statement wherein they contested the suit of the respondents/plaintiffs and raised preliminary objections i.e. non-maintainability of the suit; cause of action; non- joinder of necessary parties and pleaded that in fact the street in dispute is a 11' gali sare-aam and not the property of the respondents/plaintiffs. They further pleaded that respondents/plaintiffs have illegally constructed latrine and bathroom in the mid of the street. They have pleaded that two residential plots of the appellants/defendants are adjacent to the street in dispute, out of which, one plot is purchased by them from Ramanand son of Paras Ram on 22.6.1972 for a sum of Rs.1,000/- comprised in Khewat No.47, Khata No.64, Khasra No.133, measuring 1 kanal, 1 marla and its site plan is Ex.P-3. The Gram Panchayat and BDPO, Mathanhail gave notices to the respondents/plaintiffs to demolish the said latrine and bathroom but for protection of their illegal construction, the present suit has been filed by them.” On the pleadings of the parties, following issues were framed by the trial Court:- R.S.A.No. 3272 of 2009 (O&M) 4 “1. Whether the plaintiffs are entitled for the relief of injunction as prayed for? OPP 2. Whether the suit filed by the plaintiffs is not maintainable? OPD 3. Whether the suit of the plaintiffs is bad for non-joinder of necessary parties? OPD? 4. Whether the plaintiffs have not approached the court with clean hands? OPD 5. 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 permanent injunction and mandatory injunction alleging that the passage in dispute was reserved for them being their private passage and hence, the defendants had no right to open a gate in the said passage on the Southern side of their house. The plaintiffs in order to establish their case had led oral evidence. However, the plaintiffs have not led any documentary evidence to establish that the passage in dispute was, in fact, carved out from their property and was thus their private passage. The doors of the houses of Mange Ram, Kitab Singh (plaintiff No.2), Dharam Singh and Hari Singh (plaintiff No.1) open in the street in question, which is connected to the main street on the Southern side. As depicted in the site plan Ex.P-3 (shown during the course of arguments), the house of the defendants is on the R.S.A.No. 3272 of 2009 (O&M) 5 extreme Northern side. Although a passage has been shown on the Northern side of the house of the defendants yet they cannot be stopped from using the street in question as the plaintiffs had failed to establish that it was their private street. In these circumstance, learned Additional District Judge has rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 09, 2009 anita