R.S.A.No.2309 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2309 of 2005 Date of decision: 5th November, 2009 Smt. Prem Lata ......Appellant Versus Smt. Kala Wati and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Suresh Goel,Advocate for the appellant. Mr. Avnish Mittal, Advocate for the respondents. Rajive Bhalla, J.(Oral) The appellant challenges judgments and decrees dated 7.02.2004 and 22.11.2004, passed by the Civil Judge(Junior Division), Ambala Cantt and the Additional District Judge, Ambala, dismissing her suit and her appeal, respectively. The plaintiff/appellant filed a suit, praying for a mandatory injunction, to direct the defendant/respondents to close the door and remove the parnala opened in the intervening wall. The appellant pleaded that she is owner in possession of house no. 261. Her house opens towards the main road known as Gali no. 4. The respondents reside in house no. 273, which is to the North of her house. On 12.4.1993, when the appellant and her family members were on a visit to Patiala, the respondents opened a door at point 'A' and installed a Parnala at point 'B'. It was prayed that as the door and parnala open into her court yard, a mandatory injunction be issued directing the respondents to remove the door and the parnala. R.S.A.No.2309 of 2005 2 In response, the respondents filed a written statement claiming that as the so called court yard is part of a public street, the respondents are entitled to open the door and parnala into the street. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the plaintiff is entitled to the decree for mandatory injunction, as prayed for? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the plaintiff is estopped by his own act, conduct and admission from filing the present suit? OPD 4. Whether the suit is barred by latches and delay? OPD 5. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that the appellant has failed to prove that the door and the parnala open into the court yard of her house. It was also held that the allotment letter, that reflects the purchase of house by the appellant's father, does not show any court yard. As regards the site plan Ex.P-2, it was held that the witness produced to prove the existence of a court yard, had failed to do so. As a consequence, the trial court held that as the alleged court yard form a part of the public street, the respondents cannot be directed to close the door or remove the Parnala. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 22.11.2004, the Additional District Judge, Ambala, dismissed the R.S.A.No.2309 of 2005 3 appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that perusal of the allotment letter Mark A, shows the Plot no. 261, measuring 752 sq. feet Ex.P2 was allotted to the appellant's father. The site plan Ex.P.2 establish that the court yard, forms a part of the appellant's house. It is submitted that in view of these documents, the findings recorded by the courts below are illegal and void. It is further submitted that as the respondent has not produced any document to prove that the suit property, is a street, the suit should have been decreed. It is submitted that in view of the errors committed by the courts below, the following substantial questions of law arise for adjudication:- “1. Whether the court has power to ignore the perse admissible evidence and reply upon the oral statement? 2. Whether the wrong appreciation of facts and law is sustainable in the eyes of law?” Counsel for the respondent, on the other hand submits that the impugned judgments do not suffer from any error of fact or of law. The findings recorded by the courts below that the appellant has failed to prove that the disputed area is part of her court yard do not suffer from any infirmity whether of fact or of law. It is argued that the appellant has failed to produce any site plan that would establish the existence of a court yard or that the plot measuring 752 square feet includes the area in dispute. I have heard counsel for the parties, perused the impugned judgments and decrees and express my inability to hold that the impugned judgments and decrees suffer from any error, as would raise a substantial question of law. The dispute in the present case relates to right of the R.S.A.No.2309 of 2005 4 respondents to open a door and a Parnala into an area claimed by the appellant to be a part of her court yard. Both the trial court and the first appellate court have recorded concurrent findings of fact that the appellant has failed to prove that the area in dispute forms a part of plot no. 261 or of her court yard. The evidence adduced by the appellant namely General Land Register Ex. PW1/B, General Land Register extract plan Ex.PW1/C and Ex. P2 was rightly rejected as it does not establish the existence of a court yard. The findings of fact recorded by the courts below do not suffer from any error of law and as no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 5th November, 2009 Shivani Kaushik