RSA No.3813 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3813 of 2008(O&M) Date of decision: 25.11.2008 Jati Ram and others ......Appellants Versus Jai Pal ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sanjay Verma, Advocate for the appellants. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent has been partly decreed and he has been held entitled to use the Bara in question for reasonable enjoyment without causing any obstruction to the other inhabitants of the locality as well as the villagers and the defendant-appellants have been restrained from interfering in the peaceful enjoyment of the Bara in question by the plaintiff. Brief facts of the case, as per averments made in the plaint, are that the plaintiff is owner in possession of a house situated within the abadi deh of village Badarpur, Tehsil Thanesar, District Kurukshetra, which is shown in the site plan annexed with the plaint by letters BCEF. The open site marked as ABCD is on the western side of the house of the plaintiff and is in front of the house of the plaintiff and is exclusively owned and possessed by the plaintiff. The said open site, shown in red colour in the site plan, is bounded as under:- RSA No.3813 of 2008(O&M) 2 East : House of Plaintiff West : Rasta \ Firni North : Land owned by other South : House of Jati Ram The house of the plaintiff and Bara is one unit and the plaintiff is in possession from Heavy beginning being inhabitant of the village. The plaintiff has installed three khuntas in the said vacant land and has also planted five bananas trees on the suit land. He has also installed a Koop in the suit land and has also placed approximately 15000 bricks on the suit land for construction of his house. He has installed Khuntas for tethering cattle in the suit property. The suit property is being used for tethering cattle putting implements of agriculture and for Shahan and the plaintiff has been exercising his possession with the intention to restrain it by excluding the others. The defendants have no right title or interest in the suit property and are totally strangers to the suit property. The house of the defendants is situated towards southern side of the suit property and between the house of the defendants and the suit property, there is a kacha wall of the height of 6' from point A & B, as shown in the site plan annexed with the plaint. Even otherwise, no person can have ownership over the said portion (front portion) of other persons house. As such the defendants have got no right, title or interest in the suit property and have no right to obstruct the plaintiff or his family members from enjoyment thereof. The defendants are adamant in taking forcible possession of the suit property and they are further threatening to remove the bricks which are owned by the plaintiff and which have been brought by the plaintiff for raising pucca construction of his house and the defendants actually tried to uproot the pegs by taking illegal possession of the suit property, but the defendants could not RSA No.3813 of 2008(O&M) 3 succeed due to the timely intervention of the plaintiff and other respectable of the locality. The plaintiff requested the defendants several times to admit his claim but they have been putting the matter on one pretext or the other. Hence, this suit with the prayer that a decree for permanent injunction restraining the defendants from interfering in the peaceful possession over the suit property marked as ABCD in the site plan and from removing the bricks owned by the plaintiff from the suit property forcibly and illegally, may kindly be passed in favour of the plaintiff and against the defendants. The defendants controverting all the assertions mentioned in the plaint have raised some preliminary objections that the plaintiff has no locus standi to file and maintain the present suit; that the suit is not maintainable; that the suit is bad for misjoinder and non joinder of necessary parties; that the plaintiff is estopped by his own act and conduct from filing the suit and that the suit is false and bogus and has been filed to harass the defendants so the defendants are entitled for special costs and damages of Rs.50,000/- under section 35-A and 95 CPC. On merits, it is submitted by the defendants that the house alleged by the plaintiff, is possessed by three brothers, namely Sulekh, Om Parkash and Jai Pal. It is absolutely wrong that the house marked as BCEF in the site plan of plaintiff is owned by plaintiff, as alleged. The site plan allegedly produced by the plaintiff is false. The suit property shown as ABCD in the site plan produced by the plaintiff is absolutely owned and possessed by defendant no. 1. It is quite separate from the portion BCEF shown in site plan produced by the plaintiff. Moreover, the portion ABCD shown by the plaintiff in the site plan is not as per site. The exact site plan of the suit property is shown in red colour as KLMN in the site plan, which is attached with the written statement. This portion is owned and possessed by defendant no. 1. The plaintiff has no right, title or interest with the same. It RSA No.3813 of 2008(O&M) 4 is further pleaded that the open space shown as ABCD in site plan of the plaintiff is owned and possessed by defendant no.1 and is in the front of house of defendant no. 1. The site plan produced by the plaintiff is false. The site plan produced by the defendants is prepared by draftsman at the spot. The house of the plaintiff and his brothers is altogether separate and different from the suit property. The suit property is owned and possessed by defendant no.1 since his forefathers. The exact position of suit property is altogether different from the position shown by the plaintiff. The length of Bara i. e. suit property is 67 feet 5 inches, width is 33 feet and there are 1 Pikhan tree, 2 popular trees, 3 Bananas trees, 2 Khazoor trees (Dates tree), 2 koops, 5 khuntas owned and possessed by defendant no. 1. There are also two Bhorkhes in the suit property where defendant no. 1 and his family worship and there are also two trees of Siras, one tree Tootli and one Denk tree and the Dol of Bara/suit property owned and possessed by defendant no.1. Defendant no.1 purchased 15000 bricks form Sarvjeet Singh & Co. village Badarpur (Kurukshetra) vide two receipts dated 17.5.2001 and 18.5.2001 for making construction on this Bara and out of these bricks about 12000 bricks are lying in the suit property and about 3000 bricks are lying near the Baithak of the house of defendant no.1. There are also about two thousand Khangar bricks owned and possessed by defendant no.1 which are lying on suit property. The plaintiff has nothing to do with the same. Defendant no.1 also tethers his cattle in the suit property and is using it since forefathers. The plaintiff does not know the existing position of the suit property, so question of his possession on the suit property does not arise at all. This also shows that the plaintiff is quite stranger to the suit property. It is further mentioned that there is open space/door for ingress and outgress of defendant no. 1 and his family from his house to this Bara in suit. The Bara in suit is in front of the house of RSA No.3813 of 2008(O&M) 5 defendant no.1, so the plaintiff has no right, title or concern with the suit property. The plaintiff never remained in possession of suit property. Defendant no.1 is owner in possession of suit property since the time of his forefathers and using the same peacefully, without any let or hindrances from any quarter. Prayer for dismissal of the suit costs was made. Parties led evidence in support of their respective case. Learned trial court after hearing both the sides, decided issues no. 1 and 2 in favour of the plaintiff to the effect that he is entitled to use the Bara in question for reasonable enjoyment without causing any obstructions to the other inhabitants of the locality as well as the villagers and restrained the defendant from interfering in the peaceful enjoyment of the Bara in question by the plaintiff further holding that the plaintiff is not the owner of the suit property and of 15000 bricks lying on the suit property, while issues no.3 to 6 decided against the defendant being not pressed during the course of arguments and accordingly partly decreed the suit of the plaintiff, with costs, as above. Feeling aggrieved with the impugned judgment and decree dated 7.9.2007, defendants appellants have preferred the civil appeal no.98 of 2007, and respondent plaintiff has preferred cross objection no.110 of 2007 against the findings of the lower court on issues no.1 & 2 to the extent whereby the lower court has not held the plaintiff to be the owner of the suit property and owner of 15000 bricks lying on the suit property. The Lower Appellate Court vide impugned judgment and decree dated 10.9.2008 affirmed the findings of the trial court with the modification that 15,000 bricks lying in front of the house of the plaintiff-Jai Pal belongs to him and the appeal well as cross-objections were disposed of. RSA No.3813 of 2008(O&M) 6 Still not satisfied, the defendants have filed the present appeal challenging the judgment and decree of the Lower Appellate Court dismissing his appeal. I have heard learned counsel for the appellants. There is no merit in this appeal. On appreciation of evidence, the Courts below have recorded a finding of fact that the Bara in question is in front portion of the house of the plaintiff and there is a Rasta Sare aam and the plaintiff is using the Bara in question and the trees are standing in the Bara in question. However, he cannot obstruct right of passage of adjoining owners. The Courts below have also recorded a finding of fact that both the parties have failed to prove their ownership on record. Jai Pal-plaintiff has no document to show his ownership over the open space in front of his house. Even Jati Ram-defendant has failed to produce or prove any document on the title to show the ownership of the open space i.e. Bara in question. Moreover, the Lower Appellate Court has granted plaintiff- respondent only use of open space for reasonable enjoyment and the plaintiff-respondent cannot use the Bara in question in any manner which creates obstruction to other inhabitants of the locality as well as villagers. The argument of the learned counsel for the appellants that vide impugned judgment and decree of the Lower Appellate Court, the appellants have been restrained from interfering in the peaceful enjoyment of the Bara in question by plaintiff-Jai Pal, is misconceived. While dismissing the appeal, the Lower Appellate Court has clearly held that plaintiff-Jai Pal can make use of open space for reasonable enjoyment but he cannot use the Bara in question in any manner which creates obstruction to other inhabitants of the locality as well as the villagers. From the aforesaid, it is clear that the use of the Bara in question is also open to other inhabitants of the locality including the appellants who are undisputedly inhabitants of the village. RSA No.3813 of 2008(O&M) 7 Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. November 25, 2008 (RAKESH KUMAR GARG) ps JUDGE