R.S.A.No.3275 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3275 of 2009 Date of Decision : 09.09.2009 Zile Singh ...Appellant Versus Sube Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Ravinder Malik, Advocate, for the appellant. HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for permanent injunction restraining the defendants from raising any construction over the alleged passage on the eastern side of the house of the plaintiff, was dismissed. The plaintiff has purportedly purchased suit land vide sale deed dated 6.6.2000. The plaintiff alleged that there was a blind street 24' in width in the eastern side of the house of the plaintiff. But now the defendants are threatening to raise construction over the street in dispute, defeating the rights of the plaintiff to use such street. The plaintiff examined himself as PW-1 and Nakli, a neighbourer of the plaintiff as PW-2. However, the plaintiff neither produced the site plan nor the sale deed, wherein allegedly the 24' wide passage was reflected on the eastern side of the property purchased by the plaintiff. Both the Courts have found that in the absence of best evidence, it cannot be held that there exists a 24' wide passage on the R.S.A.No.3275 of 2009 2 eastern side of the house of the plaintiff. Learned counsel for the appellant has vehemently argued that an application for additional evidence was filed before the learned first Appellate Court, so as to produce the sale deed and site plan, in appeal. The said application was declined by the learned first Appellate Court vide a separate order on the same day, when the main appeal itself was taken up for hearing and decided. It is contended that production of the documents was necessary for proper adjudication of the lis between the parties. Therefore, the learned first Appellate Court has erred in law in declining the application of the plaintiff for permission to lead additional evidence. The onus to prove that there exists 24' wide street was on the plaintiff. But the plaintiff has examined only oral evidence in proof of his assertion that there exists a street. The lacuna in evidence cannot be permitted to filled up by filing an application for additional evidence in the first appeal. In the absence of best evidence, both the Courts below were right in law in rejecting the claim of the plaintiff, which is based only on oral evidence. Even the appellant has moved another application for additional evidence before this Court. For the reasons given by the learned first Appellate Court in declining the application, I do not find any merit in the said application as well. The lacuna in leading evidence cannot be permitted to be filled up in second appeal as well. Findings of fact recorded by the Courts below are sought to be disputed by reappreciation of evidence. However, it could not be pointed that any evidence has been misread or not taken into consideration. R.S.A.No.3275 of 2009 3 Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 09.09.2009 (HEMANT GUPTA) Vimal JUDGE