IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.362 of 2009 (O&M) Date of Decision: 4.5.2009 Ram Karan. ....... Appellant through Shri Kul Bhushan Sharma, Advocate. Versus Shri Sunder Lal and others. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 26.7.2006 and 18.9.2008 passed respectively by the Additional Civil Judge (Senior Division),Faridabad (hereinafter described as `the trial Court') and the Additional District Judge, Faridabad (referred to hereinafter as `the First Appellate Court whereby the suit filed by the plaintiff-appellant-Ram Karan and one Ram Dhan son of Richh Pal and the appeal preferred by the appellant were dismissed. An application under Order 41 Rule 27 read with Section 151 of the C.P.C. has also been moved for permission to produce additional evidence in the shape of demarcation report dated 13.4.1991 and judgment & decree dated 23.11.1998 passed by the Court of Civil Judge (Senior Division), Faridabad. The appellant and Ram Dhan had filed a suit for permanent R.S.A.No.362 of 2009 (O&M) -2- .... and mandatory injunction for restraining defendants-respondent nos. 1 to 8 from raising any construction on the rasta share-am situated towards the north and west of the courtyard belonging to them, which was fully detailed in the plaint. Respondent nos. 1 to 8 were also sought to be directed to demolish or remove any encroachment from the rasta in question in case they succeed in raising any construction. Gram Panchayat of village Kheri Kalan, Tehsil & District Faridabad was made a proforma defendant in the suit and has been arrayed as respondent no.9 herein. It was pleaded that they were co-owners in possession of Gair Mumkin Gait comprised in Khewat no.253/236, measuring 6 kanals situated within the revenue estate of village Kheri Kalan and that they have installed tin sheds and khors and were using the courtyard for tethering their cattle. It was further pleaded that khasra no.298 exists towards north side of the Gait whereas common rasta measuring 4 karams and 2 karams is situated on north and west sides respectively towards their Gait. They had averred that khasra nos. 300, 301 and 302 are situated adjoining to the said rasta share-am towards west of their Gait. It was further averred that respondent no.2 is owner of khasra no. 302, whereas respondent nos. 2 to 5 are joint owners of khasra no.301 and respondent nos. 6 to 8 are joint owners of khasra no. 300 as per jamabandi for the year 1994-95. Both these rasta share-am were stated to be existing since the time immemorial. It was pleaded that there was no other way to approach their courtyard except the aforesaid rasta share-am on north and west sides. It was alleged that respondent nos. 1 to 8 are strong headed persons and want to encroach up these rastas by raising construction R.S.A.No.362 of 2009 (O&M) -3- .... thereon. It was further alleged that when respondent nos. 1 to 8 tried to raise construction, an application dated 17.7.1998 was moved before the Sub Divisional Magistrate and they were restrained from doing so, but still they are threatening to encroach upon the public rastas. Upon notice, respondent nos. 1 to 3 and 7 filed their joint written statement resisting the suit. The locus standi of the appellant and Ram Dhan was challenged to bring the suit. It was admitted that khasra no.299 is rasta share-am and the area comprised in khasra no.297 is owned by the appellant and Ram Dhan, while khasra no.302 measuring 7 marlas was owned and possessed by respondent no.1-Sunder Lal. It was pleaded that rastas share-am comprised in khasra nos.299 and 303 abut khasra no.302. The land comprised in khasra no.301 measuring 7 marlas was stated to be owned and possessed by respondent-Ghure, Dharamvir etc. which also abuts to rastas share-am comprised in khasra nos. 299 and 303, whereas the land comprised in khasra no.300 measuring 7 marlas is owned and possessed by respondent no.7-Charan Singh, which also abuts these rastas. It was pleaded that the appellant and Ram Dhan were using the rasta share- am comprised in khasra no.299 and were enjoying the passage from north side. It was further pleaded that the suit was misconceived. They denied any encroachment having been made by them on the rastas share-am. The other respondents did not file any written statement. The trial Court, on the basis of the pleadings of the parties, framed the following issues:- 1. Whether defendants have threatened to raise construction R.S.A.No.362 of 2009 (O&M) -4- .... over rasta sare aam situated towards the north and west of the Gait of the plaintiffs?OPP 2. Whether plaintiffs have no cause of action to file the present suit?OPD 3. Whether plaintiffs have no locus standi to file the present suit?OPD 4. Whether plaintiffs are estopped to file the present suit by their own acts and conduct?OPD 5. Relief. After appraisal of the entire evidence on record, the trial Court partly decreed the suit of the appellant and Ram Dhan and restrained respondent nos. 1 to 8 from encroaching upon khasra no.299 situated in village Kheri Kalan, Tehsil & District Faridabad, whereas their prayer for mandatory injunction directing respondent nos. 1 to 8 to remove the encroachment if any raised upon the said khasra was declined. Feeling dis-satisfied with the judgment & decree of the trial Court, the appellant filed an appeal which was dismissed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellant assailed the findings of the Courts below by contending that the same are erroneous, perverse and deserve to be set aside. He contended that the application moved by the appellant for demarcation of the site in dispute had remained undecided. I have thoughtfully considered the contentions of the learned R.S.A.No.362 of 2009 (O&M) -5- .... counsel for the appellant and have perused the impugned judgments. There is no denial to the fact that the passage exists in khasra no.299 as the parties have converged concurrently on this aspect of the matter in their pleadings, but the appellant was required to prove that there existed any encroachment made by respondent nos. 1 to 8 in the passage in question. It was also required to be established that respondent nos. 1 to 8 were threatening to raise construction as was the case pleaded in the plaint. The appellant-Ram Karan had appeared as PW1 and deposed that he had earlier got khasra nos. 297, 299 and 301 demarcated in the year 1994. It was also stated by him that prior thereto also, the common passage comprised in khasra no.299 and the phirni bearing khasra no.311 were got demarcated under the orders of the Court. None of these reports was brought on record. There is no other evidence from which such an inference can be derived that there exists encroachment made by respondent nos. 1 to 8 on these rastas. The jamabandi on the record also shows that the passages belong to Gram Panchayat. Although the Gram Panchayat was made a party, but it did not choose to contest the proceedings and the matter was contested only by respondent nos. 1 to 3 and 7. The Gram Panchayat has not made any grievance of the encroachment and the appellant has miserably failed to produce any evidence to that effect. In this view of the matter, the pure finding of fact which has been recorded by the Courts below does not warrant any interference, especially when no question of law has been shown to have arisen. The plea of the appellant that the application for demarcation R.S.A.No.362 of 2009 (O&M) -6- .... remained undecided and that has prejudiced his case does not merit acceptance for the reason that he had alleged the construction having been raised by respondent nos. 1 to 8 on the common passages, but the same has not been demonstrated by any independent evidence on record and the earlier demarcations which have been carried out, were not produced. On the basis of the above discussion, I am of the considered opinion that the questions of law as framed by the appellant in paragraph 12 of the grounds of appeal and which are reproduced below, do not arise for determination as questions of fact have been decided by the Courts below:- 1. Whether the impugned judgments passed by both the Courts below are manifest illegal, perverse and on account of misreading of pleadings and evidence? 2. Whether not deciding the application for appointment of local commission for demarcation by itself raises a substantial question of law which has resulted into miscarriage of justice? 3. Whether ignoring and misreading of the statement of DW3 and DW1 and DW2 has led to return the perverse findings? 4. Whether demarcation is only the way out for ascertaining the encroachment on a particular khasra no.? 5. Whether when encroachment over the rasta is duly proved impliedly from the statement of DW3 coupled with other evidence, the non-demarcation could be made a ground for declining the mandatory injunction? R.S.A.No.362 of 2009 (O&M) -7- .... 6. Whether the appellant can be permitted to produce the demarcation report and the judgment and decree in which the said demarcation report was produced which shows the encroachment by the respondents,by way of additional evidence in the present appeal? 7. Whether once Ex DW1/C the site plan produced by the respondents is contrary to the aksh shijra, declining the claim of the appellant is illegal and perverse? In so far as the application for permitting the appellant to produce demarcation report dated 13.4.1991 and judgment & decree dated 23.11.1998 is concerned, the appellant has not shown any sufficient reason as to why he could not produce the same at the time of his leading evidence before the trial Court. In this view of the matter, I do not find any ground to allow him to do so at this stage. Accordingly, the appeal as well as the application for leading additional evidence, as also the other applications, viz. for grant of stay etc. are dismissed. May 04,2009 ( Mahesh Grover ) “SCM” Judge