REGULAR SECOND APPEAL No.2347 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.2347 OF 2007 DATE OF DECISION: JANUARY 21, 2011 Amar Chand .... Appellant Versus Madan Lal & another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. S. K. S. Bedi, Advocate for the appellant. Mr. Ajay Singla, Advocate for respondent No.1. Respondent No.2 ex parte. * * * * L.N. MITTAL, J. (ORAL) Defendant No.1-Amar Chand having failed in both the courts below is in second appeal. Respondent No.1-plaintiff Madan Lal filed suit against the appellant-defendant No.1 and Municipal Committee, Ambala Sadar, defendant no.2-Proforma Respondent No.2. The plaintiff alleged that he along with his brothers purchased house No.3214/18/1 vide sale deeds dated 30.01.1987 and 18.11.1986 (wrongly mentioned as 18.11.1996 in the plaint). Defendant No.1 is residing in house No.3214. There is common street between houses of plaintiff and defendant No.1. Three windows of the plaintiff's house also open in the said street. However, defendant No.1 some time before filing of the suit, installed gate and grill etc. in the said street, blocking the same. He also intended to raise further construction to permanently block the street, without any right to do so. Accordingly, the plaintiff sought mandatory injunction directing defendant No.1 to remove the aforesaid unauthorized illegal REGULAR SECOND APPEAL No.2347 OF 2007 -2- construction from the street. The plaintiff also sought permanent injunction restraining defendant No.1 for raising any further construction in the street. Defendant No.1 broadly controverted the plaint allegations. It was pleaded that there is no common street as alleged. The disputed piece of land is courtyard of house of defendant No.1. Plaintiff has no right to use the same as passage nor he has door of his house in the said disputed site. Plaintiff has no concern with the disputed site. It was denied that three windows of plaintiff's house open towards the disputed site. Defendant No.1 purchased his house about 25 years ago. Door of his house opens towards courtyard. One iron grill gate was and is in existence. The courtyard comes inside the said gate. Defendant No.1 has erected iron gate of the same size which is in existence near the upstairs, long before the filing of the suit. The said gate does not affect enjoyment of his property by the plaintiff. Three small ventilators are in existence in plaintiff's wall towards the disputed site. Various other pleas were also raised. Defendant No.2-Municipal Committee admitted that the disputed street is a common street, vesting in defendant No.2, which is also managing and controlling it. Defendant No.2 also alleged that it would take proper action against the defaulter and he will not be allowed to block the common street. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Ambala Cantt. vide judgment and decree dated 29.11.2004 decreed the plaintiff's suit. First appeal preferred by defendant No.1 stands dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Ambala vide judgment and decree dated 16.09.2006. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. REGULAR SECOND APPEAL No.2347 OF 2007 -3- I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that application for additional evidence moved by the appellant in lower appellate court has been erroneously dismissed by the lower appellate court. It was contended that sale deed and site plan sought to be produced by additional evidence, depict that gate already existed at the Southern end of the disputed street. It was also contended that defendant No.1 has not raised any construction in the disputed street. It was also pointed out that vide recital made in the sale deed vide which defendant No.1 purchased his house, the plaintiff has no right to open any door in the disputed street, but the plaintiff wants to open door and windows of his house towards disputed street. Learned counsel for respondent No.1-plaintiff countered the aforesaid submissions by raising the contentions which have found favour with the courts below. I have carefully considered the rival contentions. Proposed additional evidence of defendant No.1-appellant demolishes his entire case. The sale deed vide which the defendant No.1 has purchased his house depicts that the disputed site is blind or closed street. Nevertheless it is a street. This site was not purchased by defendant No.1. On the contrary, in the written statement, defendant No.1 pleaded that the disputed site is his courtyard. However, the sale deed vide which defendant No.1 purchased his house demolishes this version of defendant No.1. It would depict that the disputed site is a street and is not part of the property purchased by defendant No.1. Contention of learned counsel for defendant No.1-appellant that he has not raised any construction in the disputed site is also contrary to the REGULAR SECOND APPEAL No.2347 OF 2007 -4- stand taken by defendant No.1 in his written statement. Defendant No.1 specifically pleaded in the written statement that he has erected pillars and gate in the disputed street. Even in the witness box, defendant No.1 has admitted this fact. He has stated that he has raised construction of pillars and gate in the disputed street. However, defendant No.1 has no right to do so because he can use the street as street but he could not block it by raising any construction in it. Defendant No.1 and his witness Surinder Mohan both admitted that the disputed site lying between houses of the parties is a street which is a closed or blind street. They also admitted that three windows of house of the plaintiff and also his Patnalas open in the disputed street. Defendant No.1 also admitted that there is drain in the disputed street adjacent to the wall of plaintiff's house and waste water of plaintiff's house is discharged through said drain which has been constructed by Municipal Committee. Defendant No.1 also admitted that the disputed street has been depicted as public street in the sale deed vide which he had purchased his house. He admitted that he has no evidence to depict that he had purchased the disputed street. Defendant No.1 also admitted his signatures on writing Exhibit P-7 as well as writing Exhibit P-X undertaking to remove the gate constructed by him in the disputed street. In spite of these writings dated 15.11.1998 and 19.10.1998, defendant No.1 did not remove the gate constructed by him. In the sale deeds of the plaintiff also, the disputed site has been depicted as street. There is also evidence led by official of Municipal Committee depicting that the disputed site is public street being managed and controlled by the Municipal Committee. Hans Raj, Building Inspector of the Municipal Committee appeared in the witness box and also proved site plan. He also stated about encroachment made in the disputed street by defendant REGULAR SECOND APPEAL No.2347 OF 2007 -5- No.1, causing obstruction in the street. It is thus manifest that the disputed street is a street. Defendant No.1 has illegally encroached upon it by raising construction. The contention of counsel for appellant that respondent No.1- plaintiff has no right to open any door of his house towards the disputed street is not required to be adjudicated in this lis because no such plea has been raised in the written statement. However, suffice to notice that this contention is based on recital made in the sale deed vide which defendant No.1 purchased his house. Obviously the recital can have no bearing on the rights of the plaintiff who is not party to the sale deed. There is concurrent finding by both the courts below in favour of plaintiff-respondent No.1 based on proper appreciation of evidence on record. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below and is not shown to be perverse or illegal so as to warrant interference in second appeal. On the contrary, even own admissions and evidence of defendant No.1 depicted that the disputed site is a street and defendant No.1 has raised illegal construction in the street, which has been rightly ordered to be removed by the courts below. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is found to be lacking any merit and is accordingly, dismissed. (L. N. MITTAL) JUDGE 21.01.2011 'raj'