IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2340 of 2011 (O&M) Date of decision: 28th September, 2011 Ranjit Singh … Appellant Versus Smt. Kamlesh and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Kumar Khubbar, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Appellant-plaintiff instituted a suit against his two brothers namely, Ran Singh and Avtar Singh. Ran Singh-defendant No.1 to the suit has expired and is being represented by his widow and two sons being his legal representatives. The plaintiff earlier sought the relief of permanent injunction restraining the defendants not to interfere in the Rasta in rectangle No.69 Killa No.21 and Rasta in Khasra No.12. Later-on, claim of the plaintiff was that the Rasta has been demolished and therefore, the suit was amended and relief of mandatory injunction along with damages was also sought. It is not disputed that the plaintiff was recorded as an owner in possession as a co-sharer of land measuring 46 Kanals 9 Marlas, detail and description whereof has been given in the plaint. It was stated in the suit initially that the defendants along with some strangers went to the spot and tried to damage the Rasta and caused interference. As Regular Second Appeal No.2340 of 2011 (O&M) stated earlier, later-on the suit was amended on the ground that the Rasta has been demolished and decree of mandatory injunction be issued. After conclusion of the pleadings, the trial Court had drawn the issues. The appellant-plaintiff himself appeared in the witness box as PW-4 and examined three other witnesses, whereas Jaswinder Singh son of defendant No.1 appeared as DW-1 and examined Amar Singh as DW-2. The trial Court took into consideration Aksh Shajra Ex.P1, site plan Ex.P20 prepared by the Local Commissioner and the report of the Local Commissioner Ex.P21, from which it was discernible that the Rasta has been demolished and defendants have sown the crops. Having considered these documents, the trial Court has held that Aksh Shajra Ex.D1 lends credence to the evidence led by the defendants and Rasta is only up to point ‘D’. Furthermore, the Court has held as under: “15. … … … The Aks-Sizra Ex.P20, Site Plan Ex.P22 and Ex.D1 site plan do not dispute the properties of plaintiff and defendants and Ranjit Singh has claimed that his land is touched by the boundary of other villages and he has no passage to reach the government Rasta. The perusal of the report Ex.P21 shows that the Local Commissioner has mentioned that rasta has been damaged by Ran Singh and Bersin has been cultivated by the said land but it has not been mentioned as to what time, the Barsin was sown in the land in dispute… … …” The Court further held that at the time when the mutual partition had taken place, no writing was prepared. Thus, it was observed by the Court that the remedy for the plaintiff was to seek partition. Court further held that Aksh Shajra Ex.D1 has not been 2 Regular Second Appeal No.2340 of 2011 (O&M) disputed by the plaintiff. These findings have been affirmed by the lower appellate Court. Mr. Ashok Kumar Khubbar, Advocate appearing on behalf of the appellant, has stated that as per the admitted case of the parties, mutual partition had taken place between three brothers. Counsel has further stated that the mutual partition would have been rendered of no use had no assess been provided to the appellant-plaintiff to approach his fields and the residence. This is not the case of the appellant-plaintiff that except the so called passage there is no other passage available to him. Both the courts below having appreciated the evidence threadbare had given preference to the defendants’ evidence and Aksh Shajra Ex.D1. It can not be said that the view formulated by both the courts below is perverse. On appreciation of evidence, the view formulated by the Courts below is one which is possible. In a regular second appeal this Court will not cause any interference because the version propounded by the appellant-plaintiff looks probable. Otherwise also, the courts below have very rightly observed that the remedy available to the appellant-plaintiff is to seek partition of the suit property. During the course of arguments, counsel for the appellant has failed to raise any question of law much less a substantial one for consideration of this Court. Hence, the present appeal is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 28, 2011 rps 3