R. S. A. No. 3520 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3520 of 2009 Date of Decision : March 02, 2010 Dhan Singh and others .... Appellants Vs. Desh Ram and another .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Naveen Sharma, Advocate for Mr. Vinod S. Bhardwaj, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Defendants no.1 to 3 have filed the instant second appeal having remained unsuccessful in both the courts below. Desh Ram – respondent no.1 filed suit against the appellants and against Gram Panchayat – respondent no.2/proforma defendant no.4. The plaintiff alleged that there is disputed street shown in red colour in the site plan by letters AB. The said street is in existence on the spot for more than 25 years. Inhabitants of the village including the plaintiff have been using the said street for access to the house of the plaintiff. There is no other passage for the house of the plaintiff except the disputed street. House of defendant no.1 is situated towards north of disputed street. Defendants no.2 and 3 are sons of defendant no.1. Defendant no.1 has also opened the doors and ventilators of his house towards the street. However, now, the R. S. A. No. 3520 of 2009 2 defendants want to block the said street and want to close the gate of the house of the plaintiff towards the said street. Accordingly, the plaintiff sought permanent injunction restraining defendants no.1 to 3 from interfering in the use of the disputed street by the plaintiff and from closing the gate of the plaintiff's house opening in the said street. Defendants no.1 to 3 inter alia pleaded that the disputed site is not a street. The said land is part of plot of defendant no.1 comprised of khasra no.356. Towards south thereof, there is plot no.357 owned and possessed by one Prem Sukh. The disputed site is southern portion of khasra no.356 of defendant no.1, who left this open space for opening of his windows and ventilators in southern wall. Plaintiff had no concern with the same. Plaintiff's house opens towards west. There is passage for plaintiff's house on western side. Learned Additional Civil Judge (Senior Division), Loharu, vide judgment and decree dated 30.01.2006, decreed the suit of the plaintiff. First appeal preferred by defendants no.1 to 3 has been dismissed by learned Additional District Judge, Fast Track Court, Bhiwani, vide judgment and decree dated 30.01.2009. Feeling aggrieved, defendants no.1 to 3 have filed the instant second appeal. Learned counsel for the appellants contended that plaintiff's house was constructed after consolidation of holdings in the year 1982-83 and therefore, the plaintiff had not been using the disputed site as street for more than twenty years to acquire easementary rights. The contention cannot be accepted because there is no cogent evidence to show that house of the plaintiff was constructed after 1982-83. Bald oral statement of Jaivir DW-3 in cross-examination to this effect is not sufficient to record a finding to this effect. On the other hand, there is other evidence on the record that house of the plaintiff is quite old one. There is also evidence that the disputed site has been brick paved as street by Gram Panchayat. There is no evidence to establish that there is any other passage for the house of the plaintiff except the disputed street. Jai Bhagwan-defendant no.3, while R. S. A. No. 3520 of 2009 3 appearing as DW-2, simply stated that there is a gate of plaintiff's house towards west. However, there is no evidence that any passage exists towards west side of the plaintiff's house for access to plaintiff's house. On the other hand, there is concurrent finding of fact by both the courts below based on proper appreciation of evidence that the disputed site is being used as street for more than 25 years and there is no other passage for plaintiff's house. The said finding cannot be said to be perverse or illegal. Being finding of fact, the same cannot be assailed in instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be without any merit and is accordingly dismissed in limine. March 02, 2010 ( L. N. MITTAL ) monika JUDGE