RSA No.781 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 781 of 2009 (O&M) Date of decision: 26.4.2011 Parkash and others .....Appellants Versus Khusal Chand and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sanjay Vashist, Advocate, for the appellants. None for the respondents. **** SABINA, J. Plaintiffs had filed a suit for permanent injunction seeking direction that the defendants be restrained to remove the encroachment made by them in passage bearing khasra No. 3590. The case of the plaintiffs, in brief, was that they were owners in possession of the suit land along with their brothers. The plaintiffs were using the suit property as a passage to reach their land. Plaintiffs had no other passage to approach their land except the passage in dispute. Defendants in collusion with each other had encroached upon the passage in dispute. Hence, the suit was filed by the plaintiffs. Defendants No. 1 to 3, in their written statement, averred that the suit filed by the plaintiffs was liable to be dismissed as the report submitted by the Local Commissioner had been prepared at RSA No.781 of 2009 (O&M) 2 the back of the defendants. Defendant No.4 in his written statement averred that Khasra No. 3590 was owned by the Municipal Committee. It was a public thorough fare. Defendants No. 1 to 3 had illegally encroached upon the said passage. On the pleadings of the parties, the following issues were framed:- “1. Whether the defendants have encroached upon path bearing khasra No. 3590 as alleged in the plaint?OPP 2. Whether the plaintiffs have no locus standi to file the present suit?OPD 3. Whether the defendants are entitled to special cost under Section 35-A of CPC? OPD 4. Relief.” The Additional Civil Judge (Senior Division) vide judgment and decree dated 8.11.2004 decreed the suit of the plaintiff and directed the defendants to remove the encroachment raised in path bearing No. 3590 and restore to its original form as gair mumkin rasta. Aggrieved by the said judgment and decree, Parkash, Sita Ram and Koshilya Devi, legal heirs of defendant No.3 preferred an appeal. Vide judgment and decree dated 29.9.2008, the Additional District Judge dismissed the appeal. Hence the present appeal by the said legal heirs of defendant No.3. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. The case of the plaintiffs was that the defendants had encroached upon the passage bearing Khasra No. 3590. Plaintiff- RSA No.781 of 2009 (O&M) 3 Khushal Chand himself appeared in the witness box in support of his case. As per the copy of the jamabandi for the year 1989-90, Exhibit P1, Khasra No. 3590 measuring 6 kanals is described as gair mumkin rasta. Plaintiffs are described as owners in possession of Khasra Nos. 3583 (0-16) and 3584(0-15) as per the copy of the jamabandi, Exhibit P2 for the year 1989-90. As per Exhibit PW2/B site plan prepared by the Local Commissioner, Khasra No. 3590 has been depicted as a passage. As per the report of the Local Commissioner Exhibit PW2/A, the passage bearing khasra No. 3590 had been encroached upon by Harchand Singh alias Harish Chanders. Plaintiffs had no other passage to reach their land. The Local Commissioner was examined by the plaintiff as PW2 and he proved his report Exhibit PW2/A and site plan Exhibit PW2/B. Although the said witness deposed that he had prepared the report without issuing any notice to defendant No.1 but the defendant had failed to appear in the witness box to rebut the evidence led by the plaintiffs. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the suit property/passage in dispute had been illegally encroached by the defendants. The said finding of fact cannot be interfered with by this Court in appeal. No substantial question of law arises for consideration in this appeal. Dismissed. ( Sabina ) Judge April 26, 2011 RSA No.781 of 2009 (O&M) 4 arya