RSA No.932 of 2007 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 26.8.2009 (i) RSA No. 932 of 2007 Anil Kumar Modi and others ......Appellant Versus Tarsem Kumar Gupta .......Respondents (ii) RSA No. 941 of 2007 Anil Kumar Modi and others ......Appellant Versus Tarsem Kumar Gupta .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Arun Jain, Senior Advocate, with Shri Vishal Sharma, Advocate, for the appellants. Ms. Poonam R. Mehta, Advocate, for the respondent. HEMANT GUPTA, J. (Oral). This order shall dispose of RSA No. 941 and 932 of 2007, as both the appeals raise common questions of law and facts. The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for permanent injunction filed by the plaintiff-respondent was decreed RSA No.932 of 2007 (2) and the counter claim filed by the defendants was dismissed. The plaintiff has claimed decree for permanent injunction on the plea that open space measuring 62'-6"x10" between the house of the plaintiff and the defendant is a private passage, but with the restriction that the defendants are entitled to open windows with iron rods in their wall. The plaintiff has put pucca bricks upto the height of 6 feets to prevent the cattle; stray dogs and trespassers from entering into the personal passage of the plaintiff, whereas the defendants are threatening to remove the stack of bricks lying on the said passage, for which they have no right in view of the previous litigation between the parties. The defendants filed a counter claim asserting that they have a right to use passage in dispute, sought direction to the plaintiff to remove the bricks blocking the passage. Earlier, plaintiff Tarsem Lal, had filed a suit for injunction against the Municipal Committee, pointing out that there is a passage towards the eastern side of the building purchased by the plaintiff and that a latrine is in existence in the passage for the last 10 years, but the Municipal Committee has served two notices dated 10.1.1976 under Sections 195 and 195-A of the Punjab Municipal Act, 1911, to remove the said latrine. Since the Municipal Committee, threatened to demolish the disputed latrine, the plaintiff filed Civil Suit No. 323 dated 17.7.1976 for permanent injunction. The predecessor-in-interest of the defendants, namely, Kewal Krishan, filed a suit for mandatory injunction (Civil Suit No. 403 of 7.8.1976) claiming that the plaintiffs are owners of the property marked by letters `C', whereas the defendants are owners of the property marked by letters `D'. Between the properties of the plaintiff and defendants, there is a public passage of the width of 10 feet, whereon the defendants have RSA No.932 of 2007 (3) constructed a latrine about 10/11 months back. It was thus alleged that no construction is permissible over the aforesaid passage of 10 feet wide. A perusal of the judgment Exhibit P.7 in the previous suits, which were consolidated and a common judgment delivered, would show that issue No.1 was to the effect whether Tarsem Lal (plaintiff) was entitled to injunction prayed for, whereas issue No. 6 was whether there exists 10 feet wide public passage between the property of the plaintiff and the defendant. Under issue No. 3, the learned trial Court returned the following finding. “...In view of my aforesaid discussion I feel that the defendant Municipal Committee is within its rights to seek removal of the disputed latrine. Moreover, as already stated above the disputed latrine is in existence in a passage which is required to be used as such and the plaintiff had no right to build any latrine in the passage even if the same be a private one. The existence of latrine is a permanent source of nuisance to the residents of the locality and the same has been built by placing a lintel of the same in the wall of the house of Kewal Krishan and he is fully justified to seek its removal. The plaintiff is, therefore, hardly entitled to the discretionary remedy of injunction from the court. This issue is accordingly found and decided against the plaintiff.” Under issue No. 6 a finding was returned that though it is a private passage of Tarsem Lal and other co-sharers, but Kewal Krishan and others have a right to open windows and ventilators of their houses with opening towards the said passage. It was recorded as under:- “Issue No. 6:- As discussed above there was to be a passage of 10 feet width towards the eastern side of the house of Tarsem Lal and others. Even in the site plan (Ex.PW1/A) RSA No.932 of 2007 (4) prepared by Shamsher Singh (PW1), it is evident that the impugned passage is in existence at the spot. However, as already discussed above, the disputed passage appears to be a private one belonging to Tarsem Lal plaintiff and others but Kewal Krishan and other owners of the adjoining property have the right to open windows and ventilators of their houses towards the disputes site. This issue is decided accordingly. The appeals filed against the aforesaid judgment and decree were decided on 12.1.1983 Exhibits D.10 and D.11, wherein it was inter- alia, observed that rival plaintiff (Kewal Krishan) has also a right in this passage. The Regular Second Appeals Exhibit D.12 against the aforesaid judgment and decree were dismissed by this Court on 11.8.1983. Learned counsel for the appellant has vehemently argued that in the previous proceedings the 10 feet wide passage, has been recognised between the house of the plaintiff and the defendants. It is contended that the first Appellate Court has also recorded a finding that the predecessor- in-interest of the appellants has also a right in this passage. Therefore, the plaintiff Tarsem Kumar has no right to block the said passage. It is further contended that the findings recorded in the previous suit, will operate as res-judicata and the present plaintiff cannot be permitted to re-agitate the same issue again. I have heard learned counsel for the parties and with their assistance gone through the record as well. A perusal of the judgment and decree passed in the previous proceedings passed by the trial Court would show that a finding has been returned that 10 feet wide passage in existence between the houses of the plaintiff and the defendant is a private passage of the plaintiff Tarsem Lal RSA No.932 of 2007 (5) and other co-owners. The latrine constructed by the plaintiff Tarsem Lal was found to be a source of nuisance as it was adjoining the wall of the defendant Kewal Krishan. Thus, the plaintiff was directed to remove such latrine. The defendant (Kewal Krishan) was also permitted to construct ventilators and windows in the wall, which is opening towards such passage. Once, such issue has been decided in the previous proceedings between the parties, inter-se, the finding thereon operates as res-judicata. In view of the said proceedings, wherein a categorical finding has been recorded that it is a private passage of the plaintiff and his other co-sharers, the defendants cannot restrain the plaintiff from constructing a wall. The construction of 6 feet wall is neither obstructing the windows nor the ventilators of the appellants. Therefore, the appellants cannot be permitted to re-agitate the issue which has attained finality in the previous proceedings. Consequently, I do not find any patent illegality or material irregularity in the findings recorded or that the findings recorded give rise to any substantial question of law in the present second appeals. Hence, the present appeals are dismissed. (HEMANT GUPTA) JUDGE 26.8.2009 ds