RSA No. 3056 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3056 of 2010 (O&M) Date of Decision: 03.5.2011. Satpal Singh .......Appellant Vs. Smt. Raksha Datta and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Deepak Arora, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for permanent injunction restraining the defendants from interfering in his peaceful possession and demolishing the portion of the suit property and for mandatory injunction directing the defendant No.2 to remove the door at point D1 in the site plan. The case of the plaintiff in brief was that father of the plaintiff had purchased the suit property vide sale deed dated 28.5.1945, after getting the building plan sanctioned from Municipal Council, Kartarpur. The house had been constructed at the spot. The plaintiff had shifted to Kanpur and had rented out the suit property to Kailash Rani. Defendant No.2 was residing on the southern side of the portion in dispute. In the absence of the plaintiff, defendant No.2 opened the door at point RSA No. 3056 of 2010 (O&M) -2- D1 towards the property in dispute. The property in dispute was exclusively owned by the plaintiff and defendant No.2 had no right to open the gate in the suit property belonging to the plaintiff. Defendant No.1, in its written statement, averred that the civil court had no jurisdiction to try the suit. Three notices were issued to the plaintiff qua encroachment made by him over the part of municipal street. Defendant No. 2, in his written statement averred that Rattan Singh was also having property adjoining the suit property and he had also opened the door towards the street. Plaintiff had illegally encroached upon the public street. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 2. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 3. Whether this court has got no jurisdiction to hear and try the present suit? OPD 4. Whether no cause of action has accrued to the plaintiff to file the present suit? OPD 5. Relief.” Civil Judge (Senior Division) vide judgment and decree dated 14.11.2006, decreed the suit of the plaintiff for permanent injunction. Defendant No.1 was given the opportunity to proceed qua their plans to reclaim the land after resorting to legal means. Aggrieved by the said judgment and decree, plaintiff preferred an RSA No. 3056 of 2010 (O&M) -3- appeal and the Additional District Judge vide judgment and decree dated 4.8.2009 allowed the appeal and also decreed the suit of the plaintiff for mandatory injunction directing the defendant Pritam Singh to remove the door at point mark D1 shown in the site plan (Ex. P-3). Hence, the present appeal by the defendant No.2-Pritam Singh through his legal representative. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. The appellant is aggrieved by the decree, passed by the first appellate court, whereby relief of mandatory injunction was granted to the plaintiff and the appellant was directed to remove the door at point D1. The plea taken by the appellant is that the door at point D1 was the only door available to the appellant to reach the street. However, the plea that the door at point D1 was the only door available to him to reach the street, was not established by the appellant by leading cogent evidence, in this regard. The appellant failed to prove on record the site plan qua his house. The appellant also failed to establish any document of title in his favour. Thus, the appellant had failed to prove on record any document which could justify the opening of the gate at point D1. Municipal Committee had issued three notices to the plaintiff qua encroachment made by him on the public street. However, it has been noticed by the learned Additional District Judge in para 17 of the judgment that the witness Rajiv Vasal who had appeared on behalf of the committee had admitted that the plaintiff had not encroached upon any property belonging to RSA No. 3056 of 2010 (O&M) -4- the Municipal Committee. The plaintiff successfully proved his ownership qua the suit property by proving on record the sale deed dated 28.5.1945. A perusal of the sale deed (shown during the course of arguments), reveals that on the western side there was house of Mela Ram Dutt and Taur of Babu Ram Nath Dutt. On the northern side, there was drain of the Municipal Committee and on the southern side there was house of Mela Ram and on the eastern side there was a passage. The appellant, on the other hand, had failed to establish that he had a right to open the door at point D1 for ingress and outgress from his house. In these circumstances, the suit of the plaintiff for mandatory injunction was liable to be decreed. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 03, 2011 Gurpreet