RSA No. 1177 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1177 of 2008 Date of Decision: 14.09.2009 Ram Nath son of Ratti Ram son of Massaddi, resident of village Thopia, Tehsil Balachaur, Distt. Nawanshahr. ... Appellant Versus 1. Gian Chand son of Sadhu Ram; 2. Dhian Chand son of Sadhu Ram; 3. Ghola son of Karam Chand; all residents of village Thopia, Tehsil Balachaur, Distt. Nawanshahr. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Tribhuvan Dahiya, Advocate, for the appellant. Mr. Rajeshwar Singh, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 06.10.06, rendered by the Court of Civil Judge (Senior Division), Balachaur, vide which, it dismissed the suit of the plaintiff/appellant, and the judgement and decree dated 08.12.07, rendered by the Court of Additional District Judge, Nawanshahr, vide which, it dismissed the appeal. RSA No. 1177 of 2008 2 2. The facts, in brief, are that the plaintiff, alongwith other co- sharers, was in possession of the land, in dispute, within the abadi area of village Thopia. It was stated that the defendants, in connivance with each other, started threatening the plaintiff, to dispossess him, therefrom, forcibly and illegally. The defendants, were many a time, asked not to interfere, into the peaceful possession of the plaintiff, over the land, in dispute, but to no avail. Ultimately,a suit for permanent injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiff, had not come to the Court, with clean hands, as he had suppressed the material facts. It was further pleaded that the plaintiff, was estopped, from filing the suit, by his own act, conduct, admission and acquiescence. It was further pleaded that the plaintiff, had no locus-standi, and cause of action to file the suit. It was further pleaded that the suit was not properly valued, for the purpose of Court fee, and jurisdiction. It was stated that towards the southern side of the property, in dispute, there was a joint property, bearing khasra No. 44//18/3, khata No. 79/113, marked by letters ABHI, in the site plan, which belonged to Daulat Ram son of Suba and the sons of the plaintiff, namely Charan Dass, Surinder Pal and Raj Kumar. It was further stated that the defendants, got six marlas, out of the said property, from Daulat Ram, in an exchange, and mutation No. 2452, had been sanctioned, qua this fact. It was further stated that the property, in dispute, was marked as BCDEFGH, in the site plan. Both the properties, marked by words ABHI and BCDEFGH, in the site plan, abutted each other. It was further stated that about seven years ago, with the mutual consent of the plaintiff, his brother namely Janki Dass and Daulat Ram, the RSA No. 1177 of 2008 3 construction, as shown in blue colour, in the site plan, was raised and the construction, shown in green colour, was raised by the plaintiff, by way of hotch-potching both the properties, vide which, the front portion, shown in blue and green colour, was given to the plaintiff and his brother, whereas, the property, shown in red colour, was given to Daulat Ram, and that was why, the plaintiff, did not cover the entire property, in dispute, and left two gates and windows towards the passage/street left by him, for the property of Daulat Ram. It was further stated that there was also one drain, which abutted the northern boundary wall of the construction, raised by the plaintiff, in the property, in dispute, which clearly revealed the existence of passage/street, leading to the property of Daulat Ram. It was stated that the plaintiff, and the other co-sharers, as shown, in the jamabandi of the property, in dispute, were not the existing co-sharers thereof. The property, shown in red colour, in the site plan, was the exclusive ownership of the defendants and Daulat Ram. It was further stated that the defendants, were not the strangers, qua the suit property, as claimed by the plaintiff. It was further stated that the plaintiff, had already raised his construction, qua his share. It was further stated that the defendants, never threatened to dispossess the plaintiff, from the suit land. Rather it was the plaintiff, who with ulterior motive to grab the passage/street towards the northern side of the construction, in the suit property, filed a false and frivolous suit. It was further stated that the defendants, were legally entitled to use the passage for ingress and egress to their property,as shown, in red colour, in the site plan. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to RSA No. 1177 of 2008 4 injunction prayed for? OPP (ii) Whether the suit is not maintainable in the present form? OPD (iii) Whether the plaintiff has not approached the Court with clean hands? OPD (iv) Whether the exchange took place as alleged in sub para No. 2 of preliminary objection No. 2? OPD (v) Whether the plaintiff is estopped from filing the present suit by his act, conduct, admission and acquiescence? OPD (vi) Whether the plaintiff has no cause of action to file the present suit? OPD (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed by the Court of Additional District Judge, Nawanshahr, vide judgement and decree dated 08.12.07. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, that the plaintiff/appellant, was not entitled to the injunction prayed for? 10. The Counsel for the appellant, submitted that the appellant, was in possession of the property, in dispute, as was duly proved from the RSA No. 1177 of 2008 5 documentary evidence. He further submitted that the Courts below, were wrong, in coming to the conclusion, that the appellant, was not entitled to the discretionary relief of injunction. He further submitted that the Courts below, were also wrong, in coming to the conclusion, that the appellant, suppressed the material facts, from the Court, and, as such, no injunction, could be granted, in his favour. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that the property, in dispute, is marked by words BCDEFGH, in the site plan, produced by the defendants. He further submitted that both the properties marked by words ABHI and BCDEFGH, abut each other. He further submitted that about 7 years earlier to the filing of the written statement, with the mutual consent of the plaintiff, his brother, namely Janki Dass, and Daulat Ram, the construction, as shown, in blue colour, in the site plan, was raised by Janki Dass, and the construction, shown in green colour, by the plaintiff, by way of hotch-potching the properties. He further submitted that the property marked by letters DEFGLM, was left as passage, for the property of Daulat Ram, and, on account of that reason, the plaintiff, had not covered the entire property, in dispute, and left two gates and windows towards the passage/street left by him, for the property of Daulat Ram. He further submitted that there existed one drain, abutting the northern boundary wall of the construction, raised by the plaintiff, in the property, in dispute, which clearly revealed the existence of such street, leading to the property of Daulat Ram. He further submitted that the plaintiff, had no concern with the property, in dispute, which was left as passage only for the use of Daulat Ram, but he filed a suit, just with a view to grab the said passage. He further submitted that the judgements and RSA No. 1177 of 2008 6 decrees of the Courts below, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law that, this Court, cannot interfere into the concurrent findings of fact, recorded by the Courts below, until and unless, it comes to the conclusion, that the same are perverse, on account of misreading and misappreciation of evidence, or non-consideration of material piece of evidence. D1 is the site plan, which was produced by the defendants. No counter site plan, was produced by the plaintiff. The property, shown in red colour, in the site plan, is the exclusive ownership of the defendants, as proved, from the evidence, on record. The plaintiff admitted, in his cross-examination, that a passage was left, but it was private belonging to him. The stand of the plaintiff, that it is his private passage is unacceptable. There is no other passage except this passage, for the use of the defendants. During the course of his cross-examination, Ram Nath, plaintiff, stated that, he and his brother Janki Dass, were in possession of the property, measuring 2 kanals, as per the jamabandi, for the year 1998-99. He also admitted, during the course of his cross-examination, that he raised construction, on the property, in dispute. He further stated that he did not own land, on the eastern and northern side of the property, in dispute. He retired as Sub Inspector, from Punjab Police. But during his cross-examination, an observation was made by the trial Court, with regard to his conduct to the effect that, he was wasting a lot of time of the Court and was also laughing. It was also admitted by Ram Nath, during the course of his cross-examination, that he constructed a drain, from point D towards point M, and the construction shown, in the site plan, produced by the RSA No. 1177 of 2008 7 defendants, on his portion, and on the portion of Janki Dass, was correct. He further admitted that towards the northern side of the passage shown, in pink colour, there were houses constructed by different persons. The said persons had also kept open their windows and ventilators, towards the southern side of the property, in dispute. The first Appellate Court, in para 16 of its judgement, in clear-cut terms held, that there is also one drain, which abuts the northern boundary wall, raised by the plaintiff, in the property, in dispute, which clearly proved the existence of passage, leading to the property of Daulat Ram, aforesaid. The first Appellate Court, was also right, in holding, that the plaintiff, with ulterior motive to grab the said passage, filed the suit. The first Appellate Court, was also right, in holding, that the plaintiff, was suppressing the truth and material facts from the Court. The concurrent findings of fact, recorded by the Courts below, that the property, in dispute, was the passage; that the suit had been filed by the plaintiff/appellant, to grab this passage; and that he was not entitled to the injunction prayed for, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference, by this Court. The judgements and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. The substantial question of law, depicted above, is answered, against the appellant. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 14.09.2009 (SHAM SUNDER) Amodh JUDGE