R.S.A NO. 587 OF 2007 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A NO. 587 OF 2007 (O & M) DECIDED ON : 10.09.2009 Rakesh ...Appellant versus Surjan and ors. ...Respondents CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Sunil Panwar, Advocate, for the appellant. HEMANT GUPTA, J. (ORAL) C.M NO. 1623-C OF 2007 For the reasons mentioned in the application, delay of 110 days in refilling the appeal is condoned. C.M stands disposed of. C.M NO. 1624-C OF 2007 The application is disposed of with direction to the appellant to file certified copy of the judgment within three months. C.M stands disposed of. C.M NO.1625-C OF 2007 Allowed, as prayed for. R.S.A NO. 587 OF 2007 (O & M) -2- C.M NO. 1626-C OF 2007 For the reasons mentioned in the appeal, 2 days delay in filing the appeal is condoned, subject to all just exceptions. C.M NO. 1627-C OF 2007 AND R.S.A NO. 587 OF 2007 The defendant is in second appeal aggrieved against the judgment and decree passed by the learned First Appellate Court, whereby suit for mandatory injunction directing the appellant to remove the obstruction from street marked as 'ABCD', was decreed in appeal. It is the case of the plaintiff that portion 'ABCD' is a street where the defendant has encroached upon the same to use the same as a part of his house. The learned First Appellate Court found that the defendant has not placed any document on record to establish his ownership in respect of the disputed land and his claim is solely on oral evidence. Relying upon the site plan Exhibit P-1, the Courts found that their exist a street between the house of the plaintiff Surjan Singh and defendant. The First Appellate Court also recorded a finding that the disputed land is being used as a passage by the plaintiff for the last more than 20 years. Such fact is admitted by the witnesses of the defendant. The witnesses of the defendant have admitted that the disputed land is being used as passage by the defendant with the consent of the plaintiff. R.S.A NO. 587 OF 2007 (O & M) -3- A perusal of the site plan Exhibit P-1 produced by the plaintiff and Exhibit D-1 produced by the defendant shows that the portion 'ABCD' is a portion of a street which has been encroached upon by the appellant and merged with his plot situated on the southern side. The First Appellate Court has recorded a finding of fact by appreciating the evidence that the disputed area is a passage. Such finding is sought to be disturbed by the reappreciation of evidence. However, it could not be pointed that any evidence has been misread or not taken into consideration. Findings of fact recorded by the First Appellate Court, cannot be permitted to be disputed by reappreciation of evidence in second appeal. Consequently, I do not find any substantial question of law arises for consideration by this Court in the second appeal. Dismissed. September 10, 2009 (HEMANT GUPTA) shalini JUDGE