REGULAR SECOND APPEAL No.4041 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.4041 OF 2010 DATE OF DECISION: JANUARY 12, 2011 Jaspal Singh & another .... Appellants Versus Kartar Singh and others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Tribhawan Singla, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) CM No. 12305-C of 2010 Application is allowed and certified copies of judgment and decree of the trial court and of the grounds of first appeal annexed with the application are taken on record, subject to all just exceptions. Main Appeal Plaintiffs Jaspal Singh and Tarlochan Singh (brothers) having failed in both the courts below are in second appeal. Suit was filed against Kartar Singh and his three sons. However, the suit qua defendant No.2 Bachiter Singh was dismissed as withdrawn and suit proceeded against the respondents i.e. Kartar Singh and his two sons. The plaintiffs alleged that defendant No.1 was owner in possession of plot having length of 42 feet adjoining the street. The defendant No.1 also purchased another plot with length of 31 feet 5 inches vide agreement to sell dated 10.06.2000 from Narinder Singh etc. (heirs of Waryam Singh), adjoining the aforesaid plot of defendant No.1. Defendant Nos.1 thus became owner of REGULAR SECOND APPEAL No.4041 of 2010 -2- plot having length of 73 feet 5 inches. He left passage of 5 feet width depicted by letters ABCD with red colour in the site plan, for use by both the parties. Plaintiff No.1 is having the main gate of his house towards road/street as shown in the site plan. Since the date of agreement dated 10.06.2000, both the parties are using the aforesaid disputed passage for ingress and egress from their houses. Defendants are also having main gate of their house towards street on the Southern side. Plaintiffs do not have any other entrance except entrance through the disputed passage depicted by letters ABCD in the site plan. Defendants wanted to remove main gate of house of plaintiff No.2 at points C D. Accordingly, plaintiffs filed suit for permanent injunction restraining the defendants from removing main gate of house of plaintiff No.1 at points E F and from closing entrance of plaintiff No.2 at points C D measuring 5 feet in width, from the disputed passage Defendants while admitting ownership of defendant No.1 over his original plot and the second plot purchased by him from Narinder Singh etc., broadly controverted the other plaint allegations. It was denied that defendants left the disputed 5 feet wide passage for use of both the parties. Defendant No.1 claimed to be exclusive owner of site of the said passage and plaintiffs have no concern with it. Plaintiffs have blocked the said passage to the extent of 2 feet 6 inches without any right. It was denied that plaintiffs were using the said passage. Main gate of house of plaintiff No.2 opens in the main street towards South and four doors and windows of house of plaintiff No.1 also open in the main street towards South. Site plan produced by the plaintiffs is not correct and encroachment made by plaintiff No.1 at points E F to the extent of 2½ feet is required to be removed. Various other pleas were also raised. REGULAR SECOND APPEAL No.4041 of 2010 -3- Learned Civil Judge (Junior Division), Rajpura vide judgment and decree dated 10.02.2009 dismissed the plaintiffs' suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 17.08.2010. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. It is the case of the plaintiffs in the plaint itself that defendant No.1 left the disputed passage out of his plots. Plaintiffs also alleged that the passage was left for use by both the parties. However, there is no cogent evidence to substantiate this version. On the contrary, version of the plaintiffs themselves depicts that site of the disputed passage belongs to defendant No.1 exclusively. It may also be added that in the plaint, plaintiffs did not allege the disputed passage to be thoroughfare for use by the general public. On the contrary, plaintiffs claimed that the passage is for use by both the parties only. Laying of sewer line in the passage would not depict it to be a thoroughfare or to be common passage of the parties. At the risk of repetition, it may be highlighted that plaintiffs themselves admitted in the plaint that the disputed passage has been left by defendant No.1 out of his plots. Consequently, the said passage belongs to defendant No.1. The plaintiffs have no right, title or interest therein. In fact oral evidence of the plaintiffs regarding user of the said passage by both the parties has been rightly discarded by the courts below. Moreover, mere alleged user would not create any right, title or interest in favour of the plaintiffs in the disputed passage. Even the user of the passage was claimed by the plaintiffs to be since 10.06.2000 i.e. date of agreement in favour of defendant No.1, and the instant suit was filed on REGULAR SECOND APPEAL No.4041 of 2010 -4- 18.11.2003. Thus even alleged user of passage was for three and half years only and on its basis, plaintiffs would not have any right of easement or any other right to continue to use the passage. Right of easement of necessity is also not established by the plaintiffs as admittedly plaintiff No.1 has doors and windows of his house in the main street on South side and the plaintiff No.2 also admitted to have access to his house from the street. It may also be added that site plan proved by the plaintiffs by examining Draftsman is not proved to be according to spot, because the said Draftsman admitted that he had not visited the spot to prepare the site plan and rather prepared the same as per instructions of the plaintiffs. On the contrary, defendants have examined their Draftsman as witness, who prepared the site plaint after visiting the site and accordingly the site plan prepared by him is correct according to spot. Thus plaintiffs have even failed to prove that the site plan produced by them is correct according to spot. Site plan Exhibit D-2 depicts that the disputed passage is not the only passage for approaching the houses of the plaintiffs. On the contrary, they have separate entrance for their houses from the southern street. Agreement to sell dated 10.06.2000 has been relied on by both the parties. The said agreement would also depict that defendant No.1 had purchased the site of the disputed passage. Learned counsel for the appellants contended that even Waryam Singh, predecessor of the defendants, had been using the disputed passage prior to agreement to sell dated 10.06.2000. However, the contention has been noticed simply to be rejected being not substantiated by any pleadings or material on record. There is concurrent finding by the courts below against the REGULAR SECOND APPEAL No.4041 of 2010 -5- plaintiffs. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below and is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is found to be lacking any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 12.01.2011 'raj'