IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1054 of 2007 Date of Decision: 18.3.2009 Sunita. ....... Appellant through Shri K.S.Malik-I,Advocate. Versus S.K.Sharma and others. ....... Respondents through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This appeal is directed against judgment and decree dated 23.10.2006 passed by the Additional District Judge, Sonepat (referred to hereinafter as `the First Appellate Court') vide which the appeal of defendant nos.1 & 3 ( respondent nos. 1 & 3 herein) was accepted and the judgment & decree dated 16.2.2006 of the Civil Judge (Junior Division), Sonepat (hereinafter described as `the trial Court') whereby the suit of the plaintiff-appellant was decreed, were set aside. The appellant had filed a suit for mandatory injunction for directing that the respondent nos. 1 & 3 to remove the unauthorised construction from the portion measuring 140 square yards which was shown by letters GHIJ and in red colour in the site plan attached with the plaint, R.S.A.No.1054 of 2007 -2- .... whereas defendant no.2 (respondent no.2 herein) was sought to be directed to remove the unauthorised construction from the portion which was also of the same measurement and shown with letters EFGH and in green colour. It was pleaded by the appellant that she was owner of the plot depicted in the site plan with letters ABCD, which was purchased by her vide registered sale deed dated 12.11.1999 and there was a 15 feet wide gali on its southern side, which is the only access to her house from that side. It was further pleaded that on the southern side of her plot, there are houses of respondent nos.1 & 3 and respondent no.2, on both sides of the said gali and they have encroached upon the same thereby closing the ingress and egress of the appellant to her house. Upon notice, the respondents put in appearance. In their written statement, respondent nos. 1 & 3 disputed the claim of the appellant and denied that they have made any encroachment as alleged by her. They also disputed the site plan on the basis of which the suit was filed, to contend that in fact, in the western side where the appellant has shown the house of Birmati, there exists a street for ingress and egress to her plot. The existence of any gali as alleged by the appellant on the southern side of her plot was denied and it was pleaded that they had purchased their plot from one Rajinder Parshad vide sale deed dated 27.10.1999 and constructed a house thereon. In short, the case of the appellant was completely resisted. In her separate written statement, respondent no.2 had averred that there was no street in existence on the southern side of the house of the appellant and rather, the street was on the western side. It was further R.S.A.No.1054 of 2007 -3- .... averred that she was owner in possession of the land which was purchased by her and no unauthorised encroachment had been made by her on any portion of the street. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is owner in possession of the plot?OPP 2. Whether the defendants have encroached upon Gali shown by letters EFJI in the site plan?OPP 3. Whether the plaintiff is entitled for a decree of mandatory injunction on the grounds taken in the plaint?OPP 4. Whether the plaintiff has not come to the court with clean hands?OPD 5. Whether the plaintiff has no cause of action to file the present suit?OPD 6. Whether the defendants are entitled for special costs under section 35-A C.P.C.?OPD 7. Relief. It may be mentioned here that during the pendency of the proceedings, respondent no.2 was proceeded ex parte as she defaulted in appearance. After appraisal of the entire evidence on record led by the parties, the trial Court decreed the suit of the appellant, whereas on appeal, the findings recorded by it were reversed, which has resulted in the filing of the present Regular Second Appeal. R.S.A.No.1054 of 2007 -4- .... Learned counsel for the appellant contended that the findings of the First Appellate Court are perverse and warrants interference by this Court. He submitted that the First Appellate Court has totally misread the evidence to record a finding which can be termed to be perverse. After hearing the learned counsel for the appellant and perusing the impugned judgment, I am of the opinion that the appeal is without any merit and deserves to be dismissed. The appellant has placed much reliance on the site plan, Exhibit P2, but the draftsman who had prepared the same, was not produced in the witness box. No other witness of the appellant had deposed that it was correct and true according to the position existing at the site. The appellant herself has admitted in her cross-examination while appearing as PW1 that on the southern side of her plot, there were plots belonging to Rajinder Parshad and it is the case of e respondent nos. 1 & 3 that they had purchased their plot from him. There is no other evidence to show that there exists a street on southern side of her plot as alleged by the appellant. In any eventuality, this is purely a question of fact which has been determined by the First Appellate Court. There being no evidence to suggest the existence on a street on the southern side of the house of the appellant and the encroachments thereon by the respondents, the findings recorded by the First Appellate Court cannot be termed to be perverse so as to warrant any interference by this Court. No question of law, much less a substantial question of law, R.S.A.No.1054 of 2007 -5- .... arises for determination in the instant appeal, which is held to be devoid of any merit and is dismissed. March 18,2009 ( Mahesh Grover ) “SCM” Judge