RSA No.493 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.493 of 2010 (O & M) Date of Decision: 09.02.2011 Surjit Singh ……Appellant Versus Ram Niwas and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Avnish Mittal, Advocate for the appellant. L.N. MITTAL, J (ORAL) Defendant No.1-Surjit Singh, having been defeated in both the Courts below, has filed the instant second appeal. Respondent No.1-plaintiff Ram Niwas filed suit against defendant No.1-appellant and against proforma respondent Nos.2 and 3 (defendant Nos.2 and 3) i.e Block Development and Panchayat Officer and Sub Divisional Officer (Civil). The plaintiff alleged that he is owner in possession of a plot in which he has constructed his house. He purchased a part of the property from other persons and the remaining part is in possession since the time of his forefathers. Plaintiff’s son removed some construction and started residing separately with his family by constructing house in the fields. The said portion is lying vacant. House of Hardyal Shah abuts this property. Defendant No.1 claimed to have purchased some property from Hardyal Shah and on its basis, defendant No.1 is interfering in possession of the plaintiff over his property. There is no passage in the plaintiff’s property shown in yellow colour in the site plan, RSA No.493 of 2010 (O & M) - 2 - but defendant No.1 is forcibly claiming passage from there. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in plaintiff’s possession over the suit property depicted by letters ABCDEF in the site plan and from encroaching upon the same by carving out passage etc. therein. Defendant No.1 in his written statement alleged that there is 13 feet wide passage on which the plaintiff wants to encroach. The said passage is in existence since long. Hardyal Shah had purchased some property from Rajinder Nath son of Devi Dayal for Rs.99/-. He sold the same to defendant No.1, who is now in possession thereof. Legal heirs of Hardyal Shah gave general power of attorney in favour of defendant No.1. The plaintiff tried to encroach upon the passage. Defendant No.1 moved application to Tehsildar, who appointed Local Commissioner, who reported regarding existence of the street. Sub Divisional Magistrate also visited the spot and found the street to be in existence. Defendant Nos.2 and 3 also controverted the plaintiff’s allegations and pleaded that land depicted by letters CGHI in the site plan filed with the written statement was lying vacant. On inspection, it was found to be common street. Plaintiff is not owner or in possession of the said street. Learned Civil Judge (Senior Divison), Ambala vide judgment and decree dated 13.11.2007 decreed the plaintiff's suit against defendant No.1 restraining him from encroaching upon the suit portion and from using it as passage. Suit against defendant Nos.2 and 3 was dismissed. First appeal preferred by the defendant No.1 has been dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 30.09.2009. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. RSA No.493 of 2010 (O & M) - 3 - I have heard learned counsel for the appellant and perused the case file. Version of defendant No.1-appellant is that he purchased property from Hardyal Shah. However, no sale deed in this regard has either been pleaded or proved by defendant No.1. On the contrary, defendant No.1 alleged that legal heirs of Hardyal Shah executed power of attorney in favour of defendant No.1. The said power of attorney also appears not to have been produced in evidence. On the contrary, document Ex.D-5 dated 13.07.1953 has been produced regarding sale of property by Rajinder Nath to Hardyal Shah. Perusal thereof reveals that there is no passage or street towards North of the property purchased by Hardyal Shah. Consequently, there cannot be any passage or street towards north of the property claimed by defendant No.1 having purchased it from Hardyal Shah. No record of Panchayat has either been produced to depict that there is any such street. On the contrary, other streets in the village have been brick paved by the Panchayat, but the disputed site has not been brick paved by the Gram Panchayat and, therefore, this circumstance also depicts that it is not a street. Consequently, defendant No.1-appellant has no case. On the other hand, plaintiff has produced sale deeds of his property. The entire evidence read as a whole depicts that the disputed site is part of the plaintiff’s house as claimed by him because the rival claim is of defendant No.1 that the disputed site is a street which defendant No.1 has miserably failed to establish. Case of defendant No.1 is that the said street lies in between the properties of plaintiff and defendant No.1. As per own document Ex.D-5 of defendant No.1, no such street lies between the properties of the parties. The disputed site is also not claimed by defendant No.1 to be his own. The only inference is that the disputed site is of the plaintiff as claimed by him. RSA No.493 of 2010 (O & M) - 4 - Learned counsel for the appellant referred to report EX.DW- 4/1 allegedly made by Sub-Divisional Magistrate and contended that the said report proves that there is a street at the spot. The contention is completely untenable because Sub-Divisional Magistrate, who inspected the spot and made this report, has not appeared as witness. Consequently, plaintiff had no opportunity to test the correctness or veracity of the said report by cross-examining the maker thereof. On the other hand, defendants’ witness Roop Ram DW-5 admitted that at the time of visit by Sub Divisional Magistrate, plaintiff was not present nor he was summoned there. For this reason also, the aforesaid report cannot be used or read against the plaintiff. There is concurrent finding of fact recorded by both the Courts below in favour of plaintiff-respondent No.1 and against defendant No.1- appellant. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. The same does not warrant interference in second appeal as it is not shown to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine, being devoid of any merit. (L. N. MITTAL) JUDGE 09.02.2011. A.kaundal