RSA No.4373 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4373 of 2003 Date of Decision: 4.9.2009 Tara Singh .....Appellant Vs. Avtar Singh and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Vikas Bahl, Advocate for the appellant. Mr. Arun Jain, Sr. Advocate with Mr.Sandeep Jain, Advocate for the respondents no.1 and 2. .... RAJIVE BHALLA, J (Oral) Tara Singh, the appellant challenges the judgement and decree dated 13.8.2003, passed by the Additional District Judge, Nawanshahr, reversing the judgement and decree dated 14.1.2000, passed by the Cvil Judge (Junior Division), Nawanshahr. Tara Singh, (now represented by his legal representatives) filed a suit for permanent injunction to restrain the defendant/respondents no.1 and 2 from encroaching upon or raising any construction over the property comprised in Khasra No.129, as it is a common well. The respondents opposed this prayer by asserting that the suit land is in their exclusive ownership. The trial court held that the suit property is a gair-mumkin well and though surrounded on three sides by property owned by respondents no.1 and 2, is accessible by a common passage, to the public at RSA No.4373 of 2003 2 large. As a result, the trial court partly decreed the suit for permanent injunction and restrained respondents no.1 and 2 from encroaching upon or raising any construction over the suit property, as depicted in the site plan attached with the plaint, except in due course of law. Aggrieved by this judgement, respondents no.1 and 2 filed an appeal. Vide judgement and decree dated 13.8.2003, the first appellate court accepted the appeal, set aside the judgement and decree passed by the trial court and dismissed the suit on the ground that during the pendency of the appeal, respondent no.1 Avtar Singh has purchased the suit property from the Central Government. Counsel for the appellant submits that during the pendency of this appeal, the sale deed executed in favour of Avtar Singh has been set aside by the Commissioner, Jalandhar Division, Jalandhar and a revision filed by the respondents challenging this order has been dismissed by the Financial Commissioner. It is argued that as the judgement and decree passed by the first appellate court, is based solely upon the sale deed executed in favour of respondent no.1, the appeal should be allowed. Counsel for respondents no.1 and 2 states that Avtar Singh proposes to challenge the order passed by the Financial Commissioner by filing a writ petition and, therefore, has no objection, if the judgement and decree passed by the first appellate court is set aside and parties are directed not to encroach upon, raise any construction over the site or demolish any part thereof and all parties concerned would have free access to the property, subject, however, to the final determination of the rights of the parties in any collateral proceedings that respondents no.1 and 2, may initiate against the orders passed by the revenue authorities cancelling the RSA No.4373 of 2003 3 sale deed executed in their favour. In view of the statement made by counsel for respondents no.1 and 2, the appeal is allowed, the judgement and decree dated 13.8.2003, passed by the Additional District Judge,Nawanshahr is set aside and the judgement and decree passed by the trial court is modified by ordering that parties to this litigation shall not encroach upon, raise any construction or demolish any part of the suit property and all persons concerned shall have free access to the suit property, subject,however, to the final determination of the rights of the parties, in any collateral proceedings that the respondents may initiate against the orders passed by the revenue authorities cancelling the sale deed executed in their favour. Decree sheet be drawn up accordingly. No order as to costs. 4.9.2009 (RAJIVE BHALLA) GS JUDGE