R.S.A.No. 2610 of 2006 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2610 of 2006 Date of decision: 31.7.2009 Shri Chand ......Appellant Versus Mange Ram and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.M.Singh,Advocate, for the appellant. Mr.Manoj Sood, Advocate, for respondent Nos. 1 to 3. Mr.Lokesh Sinhal, Advocate, for respondent Nos. 4 to 7. **** SABINA, J. Plaintiff -Shri Chand filed a suit for permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.) Faridabad vide judgment and decree dated 10.11.2003. In appeal, the said judgment and decree were upheld by the Additional District Judge, Faridabad vide judgment and decree dated 26.4.2006. Hence, the R.S.A.No. 2610 of 2006 2 present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- “2. That he is absolute owner in possession of a plot measuring 268.9 sq.yards forming part of Rect/Khsra No.19/19/1 (3-13) (described in detail in para No.1 of the plaint) which was purchased by him vide sale-deed No.2008 dated 4.9.1986 and Sale Deed No.5686 dated 9.11.1990. He has constructed two rooms in the said plot and planted two trees and also constructed khor etc. He has only one rasta (passage) to his plot which is shown in red colour in the site plan and is marked by letters A B F G. However, the said plot is marked by letters C D E F and is shown in blue colour. He was given 7' wide and 27'.6” in length rasta by the vendors and he also purchased the rakba of rasta adjoining to the rasta of 7' wide i.e. 1' x 27'.6” from the vendors. As such the rasta shown in the enclosed site plan in red colour and marked by letters A B F G is now 8' x 27'.6”. This rasta leads to the aforesaid plot of plaintiff and he is using the same since the purchase without any interruption from any person. The defendants or any other person have no concern with this rasta. However, the defendants being strong headed persons are now bent upon to grab the R.S.A.No. 2610 of 2006 3 said rasta marked by letters A B F G by closing/blocking the same illegally and have threatened to raise construction thereon. They have also collected building material for this purpose. 3. Plaintiff further averred that there is no other rasta for egress and ingress to his house and he has an easementary right over it for proper use and enjoyment of the same. As such plaintiff sought a decree of permanent injunction against the defendants. A decree of mandatory injunction was also sought by the plaintiff pleading that since defendants have encroached upon the rasta in question during pendency of the suit after vacation of stay orders, therefore, they be directed to remove all the constructions and obstruction from the said rasta. 4. Defendants contested the suit. In the joint written statement filed by defendants no. 1 to 3, it is pleaded that they are absolute owners in possession of a plot measuring 212 sq. yards which is forming part of Killa No.19/19/1 about 7 marlas situated within the revenue estate of Mauja Garkhera Tehsil Ballabhgarh, District Faridabad which was purchased by their father Bhajni from Harbans vide registered sale deed No.2878 dated 10.6.1982 which is bounded in East by fields plot R.S.A.No. 2610 of 2006 4 of Brahm s/o Hari Lal, West by house of Rajender and plot of Shri Chand, North by 11' wide rasta and South by plot of Siri Chand son of Bhanwar Singh. The said plot is marked by letters A B C D E F and is shown in green colour in the enclosed site plain. They have also constructed a Tin shed khors, Bitore-Bonga etc. and building material is also lying on the suit property for the purpose of further construction by them. There is no rasta in the plot which is shown in green colour in the enclosed plan and the said plot is marked by letters AB C D E F. Plaintiff has no right, title or interest whatsoever with the rasta over the plot of defendants. The defendants are absolute owner in possession of the said plot which is shown by plaintiff in red colour in his site plan marked by letters GHIJKL. It is denied that plaintiff has only one rasta shown in red colour. Defendants No.1 to 3 pleaded that there is a separate rasta measuring 7' wide which is adjacent to the plots of plaintiff towards the Western side. It is denied that plaintiff was given 7' wide and 27'.6” in length rasta by the vendors or that plaintiff purchased the rakba of said rasta from the vendors. It is pleaded that vendors have no right to sell the property belonging to defendants as there is no rasta over the suit property. There is a plot R.S.A.No. 2610 of 2006 5 belonging to defendants and is in their use and occupation. Other material obligations of the plaintiff have also been denied with the prayer for the dismissal of the suit. 5. Defendants No. 4 to 7 also filed their joint written statement with the preliminary objection that the suit is not maintainable against them because neither the amended plaint discloses any proper cause of action against them nor any relief has been sought against them. Hence, they are unnecessary and improper parties in this case. On merits the site plan of the plaintiff has been disputed. However, it is admitted that on the West of the alleged suit property, there is house of Rajender and his brothers i.e. answering defendants and on the North there exists a house of Rajender etc. and rasta 27.6”x8” which leads to the plot of plaintiff and next rasta 11' wide and on the South there is land of Dharma. Other material allegations have been denied by the defendants No. 4 to 7 and claimed compensatory costs under Section 35-A of CPC against the plaintiff.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether there is any rasta to the house of the R.S.A.No. 2610 of 2006 6 plaintiff as alleged and shown by letters A B F G in the site plan? OPP 2. Whether the plaintiff has a right of easement of necessity, if so, to what effect? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is bad for non-joinder and misjoinder of parties OPD 5. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 6. Whether the plaintiff is estopped from filing the present suit? OPD 7. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for permanent injunction restraining the defendants from interfering in his peaceful possession of the suit property/passage marked A B F G in the site plan. The case of the plaintiff was that he was owner of the passage in dispute as the said passage was mentioned in the sale deed, vide which he had purchased the house owned by him. The passage in dispute led to the main road, which was 11' wide. The defendants had no concern with the passage in dispute and could not block the same. The plaintiff claimed right of easement with regard to the passage in R.S.A.No. 2610 of 2006 7 dispute. The case of the defendants, on the other hand, is that no such passage existed at the spot. In fact, the plaintiff had a passage on the Western side of his house which led to the main road. During the course of arguments, learned counsel for the appellant has drawn my attention to the site plan Ex.P-3. A perusal of the same reveals that although the passage A B F G in dispute has been shown on the Northern side of the house of the plaintiff, which is bounded by house of Rajender and Data Ram leading to the main road, however, on the Western side, 7' wide passage has been shown, which leads to the main road, which is 11' wide. Learned counsel for the respondents have relied upon site plan Ex.DW-5/A. A perusal of the same reveals that there is a 7' wide passage on the Western side of the house of the plaintiff, which leads to the main road. A perusal of both the site plans shows that there is a passage leading from the house of the plaintiff to the main road on the Western side and hence, it cannot be said that the plaintiff has no passage to reach the main road. Both the Courts below, after appreciating the evidence led by the parties have given a finding of fact that no passage in dispute A B F G exists at the spot, which was being used by the plaintiff. The said finding of fact cannot be interfered with by this Court in appeal. Learned counsel for the appellant has failed to establish that plaintiff was the owner of the R.S.A.No. 2610 of 2006 8 passage in dispute. The Courts below rejected the report of the Local Commissioner on the ground that the same had been prepared without taking into account the revenue record or any sale deed. The plaintiff had also failed to establish that he had been using the passage in dispute for the last more than twenty years as he had purchased the suit property only in the year 1986 and 1990, whereas, the suit was filed by the plaintiff in the year 2000. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 31, 2009 anita