RSA No. 2560 of 2008 (O&M) - 1- IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... RSA No. 2560 of 2008 (O&M) Date of Decision: July 21, 2010 Panna Ram and others ... Appellants VERSUS Ashok Kumar ...Respondent CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR GARG. Present: Mr. V.K. Gupta, Advocate for the appellants. Mr. Vijay Lath, Advocate for the respondent -.- RAKESH KUMAR GARG , J (Oral). This is defendant's second appeal challenging the judgment and decree of the lower appellate Court whereby suit of the plaintiff/respondent for mandatory injunction holding that the street in question was 8' feet wide with a further direction that in case anything was raised by the appellants in that street, the same be removed, was decreed. As per averments made in the suit, a passage/street of 8 feet width marked as A.B.C.D was left by the parties at the time of mutual partition between them. However, the respondent with the help of Municipal Councilor of Ward No.10 forcibly and illegally closed the passage by raising a wall. It was alleged that the plaintiff/respondent was not having any right to put obstruction in the passage to raise illegal construction thereby reducing the width of the said passage. Since defendants refused to remove the illegal construction and obstruction in RSA No. 2560 of 2008 (O&M) - 2- the passage, the present suit was filed. The suit was contested by the appellants on the ground that the plaintiff was neither owner nor in the possession of the suit property. The appellants were owner of the property and there was no passage of 8' feet as alleged by the plaintiff. However, it was admitted that there was a passage of 4' feet width which was being used by the parties without any obstruction. It was further stated that the appellants had already made a construction on their property and the plaintiff-respondent had no concern with the same while denying all other averments of the plaint, prayer for dismissal of the suit was made. After considering the evidence on record and hearing learned counsel for the parties, the trial Court came to the conclusion that admittedly there exists a passage which was being used by both the parties. However, the width of the aforesaid passage was 4' feet and, therefore, plaintiff-respondent was entitled to relief of permanent injunction restraining the appellants from raising any construction or causing any obstruction over the passage in dispute measuring 4' feet wide, which was being used by the parties to the present suit jointly. The prayer for mandatory injunction of the plaintiff-respondent was declined vide judgment and decree dated 14.08.2006 passed by the trial Court. Aggrieved by the aforesaid judgment and decree, plaintiff- respondent filed an appeal before the lower appellate Court for the relief of mandatory injunction as claimed by him in the suit . It is relevant to mention that appellants did not file any appeal or cross-objection against the findings of the trial Court holding that the 4' feet wide passage was in existence, which was being used by both the parties. The lower appellate Court on redressal of evidence and on the basis of the report of the Local RSA No. 2560 of 2008 (O&M) - 3- Commissioner, who was appointed by the Court, coupled with the other evidence on record held that the width of aforesaid passage was 8' feet and the plaintiff-respondent was entitled to the mandatory injunction as prayed. Thus, vide judgment and decree dated 5.5.2008, the appeal filed by the petitioner-respondent was accepted and mandatory injunction was issued against the appellants holding that the street being in question was 8' feet and in case anything was raised by the appellants in that street, the same was directed to be removed. Feeling aggrieved from the aforesaid judgment and decree of the Courts below, the defendant-appellant has approached this Court by way of instant appeal. Learned counsel for the appellant has vehemently argued that lower appellate Court has erred at law while ignoring the overwhelming evidence on record from which it is established that there is no 8' feet wide passage at the spot and the fact remains that only a passage of 4' feet width was left by both the parties and in these circumstances, the judgment and decree of the lower appellate Court was liable to be set aside. On the other hand, learned counsel appearing on behalf of the respondent has supported the impugned judgment and decree. I have heard learned counsel for the parties. The controversy in the present appeal is only with regard to the fact that whether there exists a passage of 8' feet width between the parties. Admittedly, the 4' feet width passage is in existence, the lower appellate Court on reappraisal of evidence has recorded a findings of fact that there exists a passage of 8' feet width. The aforesaid findings of fact has been recorded by the lower appellate Court on the basis of the report of the Local Commissioner who was appointed by the trial Court and other evidence available on record. Learned counsel for the appellant could not RSA No. 2560 of 2008 (O&M) - 4- challenge the aforesaid report successfully. The question raised is purely a question of fact. Thus, I find no error in the finding of fact recorded by the lower appellate Court. No substantial question of law arises. Dismissed. July 21, 2010 (Rakesh Kumar Garg) G.Arora Judge