RSA No.2950 of 1985 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2950 of 1985 (O&M) Date of decision 04.05.2011 Karnail Singh and others …Appellants Versus Jaimal Singh …Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present : Shri Nitin Jain, Advocate for the appellants. Mr. Ashok Sharma, Advocate for the respondent. JITENDRA CHAUHAN, J. 1. This appeal has been preferred against the impugned judgment and decree dated 27.09.1985, passed by the learned Additional District Judge, Karnal, whereby the suit of the plaintiff was dismissed. 2. In brief, the facts of the case are that the plaintiffs filed the civil suit No.714 of 1982, seeking decree for permanent injunction and restraining Jaimal Singh, the defendant, from forcibly passing through the passage shown in red colour in the site-plan, Ex.P1. It is alleged in the plaint that the predecessors-in-interest of the plaintiffs made a private passage in their own land in Khasra No.16, 25, 5/2 and 6. The defendant earlier used to go to his field from Khasra Nos.17, 18 and 19, which abuts RSA No.2950 of 1985 (O&M) -2- the main road. After selling his land to Chattar Singh, the defendant started passing through the above said khasra numbers, without any right, title or interest, which is exclusively owned by the plaintiffs. It is alleged that the defendant has threatened to pass through Khasra No.15/2 in order to reach Khasra No.17/1 and his adjoining land. 3. The defendant contested the suit that the disputed property is a public park and vests in the Gram Panchayat being shamilat land, which was reserved during consolidation proceedings. 4. From the pleadings of the parties, the following issues were framed:- 1. Whether the passage shown as red in the site plan is exclusively used and possessed by the plaintiff ? OPP 2. Whether the plaintiff has got no locus standi to file the present suit ? OPD 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the Civil Court has no jurisdiction to entertain and try the present suit ? OPD. 5. Whether the suit is bad for multifariousness ? OPD. 6. Relief. 5. The learned trial Court decided Issue No.1 partly in favour of the plaintiffs holding that the plaintiffs were in illegal possession of the suit property comprising the passage. Issue Nos.2 and 3 were decided in favour of the plaintiffs. The learned trial Court decreed the suit, holding that the plaintiffs are proved to be in possession of the suit property and the defendant was restrained from forcibly passing through the passage except RSA No.2950 of 1985 (O&M) -3- in due course of law. Against this impugned judgment and decree dated 18.04.1983, Jaimal Singh, defendant, filed an appeal before the learned Additional District Judge, Karnal, which was allowed and the suit of the plaintiffs was dismissed. Against this judgment and decree of the learned Additional District Judge, Karnal dated 27.09.1985, the plaintiffs filed this Regular Second Appeal No.2950 of 1985 which was admitted on 18.02.1986. 6. Mr. Nitin Jain, Advocate, learned counsel for the appellants submits that it has been admitted by the respondent in his statement as DW1 that the respondents cultivated the land in dispute and the learned trial Court was right in decreeing the suit for permanent injunction. The learned counsel further submits that for the sake of arguments, even if it is admitted that the plaintiffs are trespassers, even then, they cannot be dispossessed from the suit land, except in due course of law. The learned counsel further argued that even the defendant-respondent admitted that it is a public path and vests in the Panchayat being shamilat deh, but no documentary evidence is forthcoming to prove that the land in question vests in the Gram Panchayat and is shamilat deh land. 7. The learned counsel for the appellant proposed the following substantial questions of law:- 1. Whether the plaintiff is entitled to injunction on the basis of possession against forcible dispossession ? 2. Whether a person in possession can protect his possession by seeking injunction and therefore, the judgment and decree of the Lower Appellate Court is perverse ? RSA No.2950 of 1985 (O&M) -4- 3. Whether in the facts and circumstances of the case, the judgment and decree of the Lower Appellate Court reversing the well considered judgment and decree of the trial Court, is sustainable in law as also on facts ? 8. Mr. Ashok Sharma, Advocate, learned counsel for the defendant-respondents argued that no substantial question of law arises for determination in this case. It is well-reasoned judgment and needs no interference. The learned counsel has brought to the notice of this Court the issues framed by the learned trial Court and submitted that the issues are purely of facts and not of law. 9. I have heard the learned counsel for the parties and perused the record. 10. The Hon’ble Apex Court, while dealing with the point as to what is the substantial question of law, has time and again held that under the present law, a second appeal lies on a substantial question of law. The proper test is whether the question of law is of general public importance or whether it directly or substantially affects the rights of the parties, and if so whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or by the Federal Court. 11. In this case also, there is no substantial question of law arising for determination in the regular second appeal. However, because this regular second appeal is against the judgment of reversal, this Court thinks it proper to hear the arguments on merits. 12. Ex.P3, copy of jamabandi shows that Sucha Singh, predecessor-in-interest of the respondent was owner of Khasra No.234/16, RSA No.2950 of 1985 (O&M) -5- 25, 268/5/2 and 6. There is no evidence that he was owner of the passage which was carved out along Kila Nos.234 and 268. Jaimal Singh admitted that the respondents had cultivated the passage and no culvert existed at the spot. The copy of akash sajra, Ex.P2, and Jamabandi, Ex.P3, clinches the matter and it is proved that the passage marked with red colour, Mark ‘A’ to ‘A’, is a public passage and not a private passage. The plea of Karnail Singh and others that it is private passage cannot be believed. As per the akash sajra, it is a three-karam wide passage. The learned trial Court also came to the conclusion that the passage in dispute is a public passage and not a private passage. These findings remained unchallenged. Once it is held by both the Courts below that it is a public passage, everybody has a right to use it even though his land is not adjacent to the passage. A person in illegal possession of a public passage has no right to seek equitable relief of injunction. It is well recognized principle that no injunction can be granted in favour of an encroacher against the true owner. The plaintiffs- appellants have tried to encroach upon the public passage through the process of the Court seeking permanent injunction restraining other citizens not to use that passage who have legal right to do so. No other substantial question of law arises for determination in the second appeal. There is no scope to interfere in concurrent findings of facts recorded by the courts below. In Madvan Nair V. Bhaskar Pillai, (2005) 10, SCC 533, Harjeet Singh v. Amrik Singh, (2005) 12 S.C.C. 270, H.P. Pyareja v. Dasappa, AIR 2006 SC 1144: (2006) 2 SCC 496, and Gurdev Kaur and others v. Kaki and others, J.T. 2006(5) S.C. 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of RSA No.2950 of 1985 (O&M) -6- fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of Courts below, is confined only to the hearing of substantial questions of law. 13. The learned Additional District Judge has rightly allowed the appeal and dismissed the suit of the plaintiffs. 14. Accordingly, this regular second appeal fails and is hereby dismissed. No order as to costs. 04.05.2011 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter : Yes / No.