RSA No.3983 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3983 of 2007(O&M) Date of decision: 8.12.2008 Mohinder Singh ......Appellant Versus Kishan Chand and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Arun Takhi, Advocate for the appellant. Mr. S.S. Hira, Advocate for respondent No.1. Rakesh Kumar Garg, J. This is defendant’s second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit of the plaintiff for permanent injunction restraining the defendants from interfering in the 2 karams rasta as well as mandatory injunction has been decreed and the defendants have been given two months’ time to remove the encroachment failing which the plaintiff-appellant has been given the liberty to get the same removed through the Court. Briefly stated, the case of the plaintiff is that the suit property and land situated towards the Eastern side of the property in dispute was the ownership of Mohinder Singh-defendant No.1 who had carved out 2 karams wide Rasta from his own land as shown red in the site plan attached marked ABCD adjacent to the land of Barkati. The land situated towards Eastern side of the property in dispute was shown to the plaintiff and the farmer agreed to give the rights of use as Rasta to the property in dispute situated towards the Eastern side of Rasta in dispute. The plaintiff RSA No.3983 of 2007(O&M) 2 purchased the land measuring 16 kanals from defendant No.1 for the total consideration of Rs.16,000/- on 1.3.1986 through registered sale deed. There is no other passage to the property purchased by the plaintiff except two karams wide Rasta/property in dispute. He is using the Rasta in dispute since 1.3.1986. Now the defendants in connivance with each other tried to remove the Rasta. Defendant No.1 has sold part thereof to defendants No.3 and 4 which is situated towards Western side of the property in dispute. The defendants made threat to make the encroachment on the property in dispute and tried to plough the property in dispute forcibly and illegally for which they have no right. Hence, the plaintiff filed suit for permanent injunction for restraining the defendants from interfering in the Rasta measuring two karmas wide fully described in the headnote of the plaint and for mandatory injunction for removing the encroachment, if any, made by the defendants during the pendency of the suit. Upon notice, defendant No.1 and 2 filed separate written statements wherein it was asserted that the suit property has already been provided passage of two karams towards the Eastern and Western side of the property of defendant No.1 and Parmod Kumar son of defendant No.2. Defendant No.2 has no concern with the dispute with the plaintiff as his name is Jit Singh and not Ajit Singh. The detailed site plan and Aks Shajra are attached from which it is clear that the passage of two karams bearing Khasra No.18690/18691/1, which leads to the property of the plaintiff. The plaintiff is using this passage for the last 16 years. The answering defendants have never obstructed the Rasta as stated above. They took certain preliminary objections and denied rest of the averments of the plaintiff. Defendants No.3 and 4 in their joint written statement alleged that defendant No.1 has already provided passage to the property of the RSA No.3983 of 2007(O&M) 3 plaintiff towards Eastern side of Khasra No.18690/18691/3 and towards Western side of his other property and that passage bears Khasra No.18690/18691/1 and that the plaintiff is passing through that passage to his property. There is no Rasta towards the Eastern side of Khasra No.18690/18691/2 and 18690/18690/3 rather there is property of the answering defendants and they have never agreed to provide passage towards that side and the present suit against them is false and frivolous and he (plaintiff) is liable to pay them compensation. There is already existing passage as stated above and question of removal of the same does not arise at all. The plaintiff has no locus-standi to file any case against them. Answering defendants raised certain preliminary objections and denied rest of the allegations of the plaintiff and prayed for dismissal of the suit. Both the parties led oral as well as their documentary evidence. The trial Court dismissed the suit of the plaintiff. Feeling aggrieved against the judgment and decree of the trial Court, the plaintiff preferred an appeal which was accepted by the District Judge, Hoshiarpur vide impugned judgment and decree dated 28.7.2007. Still not satisfied, the defendant No.1 has filed the present appeal challenging the impugned judgment and decree of the Lower Appellate Court. Learned counsel for the appellant has vehemently argued that there is no condition or description in the sale deed Ex.P-2 showing that there is any Rasta on the Western side of Khasra No.18691/14021 and the Lower Appellate Court has wrongly placed reliance upon agreement to sell Ex.P-1 to hold that the passage of two karams provided by the defendants towards Western side of Khasra No.18691/14021 is left by the appellant. Learned counsel has further argued that the Lower Appellate RSA No.3983 of 2007(O&M) 4 Court has ignored copy of Aks Shajra Ex.D-1 and copy of site plan Ex.D-2 which clearly show that there was no Rasta existing towards the Western side of Khasra No.18691/14021 as claimed by the plaintiff-respondents and thus, the judgment and decree of the Lower Appellate Court is against the documentary evidence available on record and is liable to be set aside. On the other hand, learned counsel for the respondents has supported the findings of the Lower Appellate Court and has argued that the Lower Appellate Court on appreciation of oral as well as documentary evidence on record has recorded a finding of fact that in the agreement Ex.P-1 and sale deed Ex.P-2 it is mentioned that there is two karams wide Rasta left by appellant-Mohinder Singh from his own land (khasra No.18691/14021) which is towards Western side and the same is adjacent to the land of Barkati and even the defendants have admitted this fact during cross-examination and thus, the appeal is without any merit and is liable to be dismissed. I have heard learned counsel for the parties and perused the record. A perusal of agreement Ex.P-1 clearly shows that the appellant has agreed to leave two karams wide passage on the Western side of his land. In the sale deed Ex.P-2 also the description of the property sold to the plaintiff-respondents has been mentioned as Rasta two karams on Western side of Khasra No.18691/14021. Thus, from these documents which have been duly proved on record, it is clearly established that there was two karams wide Rasta left by the appellant on the Western side of Khasra No.18691/14021. A perusal of documents Ex.D-1 and D-2 would show that the land sold to the plaintiff-respondents has not been shown properly demarcated in these documents and therefore, in the absence of marking of the property in dispute of the RSA No.3983 of 2007(O&M) 5 plaintiff-respondent, these documents are of no help to the appellant. Mohinder Singh-appellant while appearing as DW-3 has stated that the property sold to the plaintiff has approach from two sides. One passage has been provided by him and other passage is touching to the land so sold by him to the plaintiff-respondents. The appellant has also admitted the execution of agreement Ex.P-1 and sale deed Ex.P-2 to be correct in his cross-examination. Thus, there is a clear admission on the part of the appellant that two karams wide Rasta was left by him on the Eastern side of Khasra No.18691/14021 for the plaintiff-respondents. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 8, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.3983 of 2007(O&M) 6