Regular Second Appeal No. 2872 of 1986(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 2872 of 1986(O&M) Date of Decision: July 29, 2011 Sant Singh ---Appellant versus Hardeep Singh ---Respondents Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr. Rajneesh Chauhan, Advocate, for the appellant Ms. Shikha Sharma, Advocate, for Mr. Vikas Singh, Advocate, for the respondent *** Gurdev Singh, J. This second appeal has been preferred by Sant Singh, appellant- defendant against the judgment and decree dated 6.6.1986 passed by Additional District Judge, Patiala, vide which he accepted the first appeal preferred by Hardeep Singh-respondent-plaintiff, against the judgment and decree dated 19.2.1985 passed by Subordinate Judge Ist Class, Patiala, and the decree passed by the trial court against the plaintiff was reversed and the suit of the plaintiff was decreed for mandatory injunction directing the defendant to remove the Regular Second Appeal No. 2872 of 1986(O&M) -2- encroachment from the portion marked 'ABCD', as shown in the map, mark ‘A’, so annexed with the plaint. The plaintiff filed suit for mandatory injunction directing the defendant to remove encroachment/construction made by him in the street marked ‘ABCD’ existing between his house and that of the defendant. He pleaded in his plaint that there is street of the width of 5 feet and his house is situated on the Eastern side thereof, whereas the house of the defendant is situated on the Western side of that street. Four windows of his house open towards the street from the last 18-19 years and this street is being used by him and other villagers since the time immemorial without any obstruction. He has, thus, acquired the right of easement to use the same. About 15 days before the filing of the suit, the defendant encroached upon the street by raising constructions therein, which was depicted by him in the map Mark ‘A’, annexed with the plaint. The suit was contested by the defendant. In his written statement, he admitted the existence of the house of the plaintiff but denied the other contentions made in the plaint. He pleaded that there is no such street at the spot and no such right of easement has been acquired by the plaintiff. He has not made any such encroachment. In fact the plaintiff wants to construct a chobara on his house and intends to open the windows of the same towards his property. He also took up the objection that the plaintiff is estopped from filing the suit by his own conduct. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether there exist a street between the houses of the plaintiff and the defendant and plaintiff and other inhabitants of the village has been using the street as such from time to time immemorial? OPP Regular Second Appeal No. 2872 of 1986(O&M) -3- 2. Whether the plaintiff is entitled to the mandatory injunction prayed for? OPP 3. Whether the plaintiff has got easement right over the street in question as he is using and occupation of the same for the last 30 years? OPP 4. Whether the defendant has encroached upon the street as alleged and raised construction? OPP 5. Whether the plaintiff is stopped by principle of estoppels by his own act and conduct? OPD 6. Relief. To succeed in the suit, plaintiff examine himself as PW-1, Amar Singh, PW-2, Jang Singh, PW-3, Kartar Singh, PW-4 and Dhian Singh, PW-5. On the other hand, the defendant himself entered the witness box as DW-3 and examined Indresh Khanna. Draftsman, DW-1, Mangat Rai, Patwari, DW-2 and Balbir Singh, PW-4. After going through the evidence so produced on the record, the learned trial Court decided Issue Nos. 1 to 4 against the plaintiff and did not record any finding on Issue No. 5, on the ground that this issue was given up by the parties at the time of arguments. In view of the findings recorded on Issue Nos. 1 to 4, the plaintiff was non-suited. As already said above, in the appeal, the decree of the trial court was reversed and the suit of the plaintiff was decreed. I have heard learned counsel for both the sides. It has been submitted by counsel for the defendant that the matter in dispute stands clinched from the report of the Local Commissioner, who mentioned in the report that no such street exists at the spot. In the sale deed, vide which the plaintiff had purchased the property in dispute, no such street Regular Second Appeal No. 2872 of 1986(O&M) -4- has been shown, which also falsifies his stand that such a street exists at the spot. Before recording the findings in favour of the plaintiff, the First Appellate Court was required to record a specific finding that the plaintiff had acquired the right of easement to use the street in dispute. No such finding was recorded, and as such, suit of the plaintiff could not have been decreed for mandatory injunction. On the other hand, counsel for the plaintiff tried to assert, on the basis of the findings recorded by the First Appellate Court, that there is no merit in the submissions made by counsel for the defendant. According to him, no such substantial question of law arises in the present appeal, which may necessitate the entertaining of this second appeal. In view of the submissions made by counsel for both the sides, the following substantial questions of law arise in the present appeal:- “Whether the decree for mandatory injunction could have been passed in favour of the defendant without recording a finding that the plaintiff had acquired the right of easement for the use of the street in dispute and in respect of light and air to his house from the windows opening towards the said street?” When the plaintiff entered the witness box as PW-1, he did depose that the street of 5 feet width adjoins his house and the windows of his house open towards the same. He never stated that he is using this street for ingress or egress to his house. Similarly, the witnesses examined by him, namely; Amar Singh, PW-2, Jang Singh, PW-3 and Kartar Singh, PW-4, deposed about the existence of that street in between the houses of the parties but they also did not state that the street was being used by the plaintiff. When the defendant entered the witness box as DW-3, he deposed that there is no street intervening his house and that of the house of Regular Second Appeal No. 2872 of 1986(O&M) -5- the plaintiff. But when he was cross examined, he admitted that plot of Harbans Singh abuts his house and next to that is the house of Kabul Singh and that in between the houses of Kabul Singh and Jang Singh, there is a street. When he was further cross examined regarding the location of the street, he admitted that three windows of the house of Harbans Singh also open in the street and that the street leads up to his house. The admissions made by him go to show that the report of the Local Commissioner, Ex. DW3/D, and map, Ex. DW3/E, are not correct. No such street was shown by him in his report or map in between the houses of Harbans Singh, Jang Singh and Dhian Singh, which has been so admitted by the defendant during his cross examination and statement has been further endorsed by Balbir Singh, DW-4, who also admitted the existence of that street. There was no question of the mentioning of the street in the sale deed (Ex. P-1), vide which the plaintiff purchased the plot. It is very much clear from the contents of that sale deed that the plot, so purchased by him, and the land abutting the same, were lying vacant at that time. From the oral evidence produced by the plaintiff, it stand proved that when he constructed the house, the land on the Eastern side of his house, was lying vacant and he had kept two windows of his house towards that side. He has miserably failed to prove that he has been using the alleged street otherwise since the time immemorial and that he has acquired the right of easement by way of prescription. He has successfully proved on the record that he constructed the house in the year 1964 and those two windows were opened by him at that time. It is the specific statement of defendant, DW-3, that he purchased the property, vide sale deed Ex. DW3/A, and thereafter constructed the house in the year 1966. The said sale deed was executed in the year 1966. The statement of the defendant that he constructed the house in the year 1966, was Regular Second Appeal No. 2872 of 1986(O&M) -6- not challenged, as he was never cross examined on that aspect by the plaintiff. The defendant constructed his house in the year 1966, raising parallel wall in front of those windows. There was no question of the plaintiff acquiring the right of easement by the use of windows for two years only. Therefore, no such relief of mandatory injunction could have been granted to him. No such street was described in the sale deed of the plaintiff, which clearly shows that the vendor has not kept any street on the Western side of the plot sold in favour of the plaintiff. The abadi at that place had developed subsequently. Had any such street been kept at the spot, that fact must have been incorporated in the sale deed, which was executed by the same vendor in favour of the defendant after two years. No such recital was made therein. In these circumstances, the findings recorded by the First Appellate Court cannot be sustained. In the result, this appeal is hereby accepted. The judgment and decree of the First Appellate Court is set aside and the suit of the plaintiff is dismissed. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE July 29, 2011 PARAMJIT Whether to be referred to the Reporter? Yes/No