Regular Second Appeal No.1239 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-29.6.2010 Rattan Singh and others ...Appellants Versus Jasmer Singh ...Respondent CORUM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.R.N.Moudgil, Advocate for the appellants. M ehinder S ingh S ullar , J. (Oral) This civil appeal has been directed by Rattan Singh and his sons Sukhwinder Singh and Kulwinder Singh appellant-defendants (hereinafter to be referred as “the defendants”) against the impugned judgment and decree dated 2.2.2009, whereby the trial Court has decreed the suit filed by Jasmer Singh respondent-plaintiff (hereinafter to be referred as “the plaintiff”) and restrained the defendants from illegally and forcibly blocking the passage in dispute till the final partition. They have also challenged the impugned judgment and decree dated 29.10.2009, vide which, the first Appellate Court has dismissed their appeal as well. 2. The compendium of the facts, relevant for disposal of the present appeal and emanating from the record, is that the plaintiff has filed the suit for permanent injunction restraining the defendants from blocking the thoroughfare (Rasta Share-Aam) by raising the construction, denominated by letters ABCD depicted in the site plan, inter-alia, pleading that the parties to the suit belong to the same family, having common ancestors. They were using the common passage in dispute for approaching Regular Second Appeal No.1239 of 2010 2 their houses. The plaintiff claimed that the defendants are taking steps to block the passage in question and in case the same is blocked by them, it would cause immense loss to him. 3. Levelling a variety of allegations, in all, according to the plaintiff, the defendants have taken steps to block the passage in dispute without any legal right. Thus, he prayed for a decree for permanent injunction, in the manner indicated here-in-above. 4. The defendants contested the suit and filed the written statement, inter-alia, taking certain preliminary objections of, maintainability of the suit, locus standi of the plaintiff, estoppel, mis-joinder and non-joinder of necessary parties. On merits, it was claimed that the passage in question, leading to the house of the plaintiff, is a separate passage from the passage to the house of the defendants. The property in dispute was never used as a passage, which is part of Khasra No.507 and had fallen to their share in family partition and the defendants are in possession of the same. According to the defendants, that houses and enclosures of the parties were mutually partitioned by their forefathers and since then they have separate possession of their respective properties. In all, according to the defendants, since the plaintiff has no concern with the disputed passage, so, he is not entitled for any relief. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. 6. In the wake of the pleadings of the parties, the trial Court framed the following issues for adjudication:- Regular Second Appeal No.1239 of 2010 3 1. Whether the plaintiff is entitled for injunction as prayed for?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiff has no locus standi to file the present suit?OPD 4. Relief. 7. The parties produced oral as well as documentary evidence on record, in order to substantiate their respective pleas. 8. The trial Court, after taking into consideration the evidence on record, decreed the suit of the plaintiff, vide impugned judgment and decree dated 2.2.2009. 9. Aggrieved by the judgment and decree of the trial Court, the defendants filed the appeal, which was also dismissed by the first Appellate Court, vide impugned judgment and decree dated 29.10.2009. 10. The appellants (defendants) still did not feel satisfied with the impugned judgments and the decrees and filed the present appeal. 11. After hearing the learned counsel for the appellants (defendants) and after going through the record with his valuable help, I am of the considered view that the present appeal deserves to be dismissed, for the reasons mentioned here-in-below. 12. The solitary argument of the learned counsel that the suit of the plaintiff was not maintainable against the defendants, who are co-sharers in the disputed portion, is not only devoid of merit but misplaced as well. As is evident from the record that the plaintiff had filed the simple suit for a decree for permanent injunction restraining the defendants from illegally Regular Second Appeal No.1239 of 2010 4 blocking the passage in dispute by raising any construction. The counsel for the defendants has failed to point out as to how and in what manner, the suit for permanent injunction is not maintainable in this relevant connection. 13. The trial Court, after scanning the evidence on record, recorded a finding of fact, which is reproduced as under:- “After going through the testimony of the witnesses examined by defendant, I am of the considered opinion that the existence of doors and window of the house of plaintiff has been admitted by all the DWs examined by defendants including defendant himself as discussed earlier towards the alleged passage which lead to the inference that there exist windows and doors of home of plaintiff in disputed passage as alleged by plaintiff. Otherwise, there was no question of leaving window and doors of the house of plaintiff as well as house of defendants toward passage. DW3 Devi Dyal and DW4 Prem Singh witnesses of the defendants have admitted the existence of passage in question. Ex.DW3/A compromise between the parties is also showing the existence of passage. Though ld.counsel for the defendants has vehemently contended that the passage in question cannot be turned as share Amm because same do not exist on record of Gram Panchayat otherwise the Gram Panchayat may have paved the bricks therein carries no weight. It is abundantly clear from the testimony of the witnesses of plaintiff and evidence of defendant that the same is a private passage left by both the parties in khasra no.507 as shown in site plan Ex.D1. Jamabandi Ex.D2 for the year 1998-1999 is showing the land in question comprised in kh.no.505 and 507 to be joint between the parties which now has been partitioned vide judgment dated 3.10.2007 proved on Regular Second Appeal No.1239 of 2010 5 record as Ex.PX.” 14. Thus, the trial Court has held that the disputed passage was common passage between the houses of the plaintiff and defendants and the defendants have got no right to illegally and forcibly block the same by raising any construction, till the final partition takes place between the parties. Not only that, the findings of fact recorded by the trial Court were duly affirmed by the first Appellate Court. 15. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant connection, have already been duly considered and dealt with by the Courts below. 16. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the compromise dated 1.7.1996 pertains to some passage. There are admissions appearing in the statements of defendants' witnesses, wherein they have admitted the existence of the passage in dispute. Admission is the substantive evidence, which can be used for determining the rights of the parties. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already Regular Second Appeal No.1239 of 2010 6 arrived at by the Courts below, in this regard. 17. Meaning thereby, the entire gamut/matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the instant case, 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 19. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 29.6.2010 Judge AS