IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4166 of 2010(O&M) Date of Decision: December 08, 2011. Ram Phal and others ...... APPELLANTS Versus Babu Lal ...... RESPONDENT CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Sat Narain Yadav, Advocate for the appellants. ***** RAM CHAND GUPTA, J.(Oral) C.M. No.12585-C of 2010. Application is allowed subject to all just exceptions. RSA No.4166 of 2010. Present appeal has been filed against the judgment and decree dated 15.04.2010 passed by Additional District Judge, Rewari accepting the appeal filed by respondent-plaintiff by reversing judgment and decree dated 19.12.2007 passed by the learned trial Court and by decreeing the suit filed by respondent-plaintiff. I have heard learned counsel for the appellants-defendants and have gone through the whole record including both the judgments passed by the Courts below. Briefly stated, suit of the respondent-plaintiff is that he is owner in possession of a house within the abadi of village Dahina as shown in site RSA No.4166 of 2010(O&M) plan attached with the plaint and there is a public passage which leads to bus stand, as shown in yellow and red colours in the site plan. It is further contended that Matadeen, since deceased, was owner of property shown in blue colour in the site plan and present appellants-defendants are sons of Matadeen deceased and that the disputed rasta is about 100 years old and houses of villagers including residential house of present respondent- plaintiff have been constructed on both sides of the said rasta. It has been contended that father of appellants-defendants constructed a house on the southern side of the disputed rasta and there is also a pucca drain and ramp over the drain and however, they intend to grab the common passage by raising construction over it. On notice being issued, specific plea had been taken by the present appellants-defendants that rasta in dispute is not a public rasta and rather, the same is private gali of appellants-defendants. On appreciation of evidence adduced by both the parties, learned trial Court dismissed the suit filed by respondent-plaintiff, however, learned first appellate Court reversed the said finding by allowing the appeal filed by respondent-plaintiff. The suit filed by respondent-plaintiff was decreed to the extent that present appellants-defendants were restrained from raising any sort of construction over the rasta in dispute as shown in yellow colour in the site plan Ex.PW1/A. It has been contended by learned counsel for the appellants- defendants that respondent-plaintiff has failed to prove the property in dispute to be a common gali and that however, learned first appellate Court reversed the finding given by learned trial Court without giving any cogent reasons. However, there is no force in this contention of learned counsel for the appellants-defendants. Sufficient reasons have been given by learned first appellate Court in reversing the finding recorded by learned 2 RSA No.4166 of 2010(O&M) trial Court. Respondent-plaintiff examined as many as 11 witnesses. Even a witness of appellants-defendants namely Sheodan, DW1 had deposed that rasta is upto the wall of western side of house of plaintiff. He also stated that rasta sare-aam was made pucca about three years ago. His plot was situated at a distance of one killa from the disputed rasta. He had already sold the said plot. He admitted that in the northern side of house of defendants 4 feet land was left towards society side. As per site plan Ex.PW9/1, in the southern side of property of Co-operative Bank of society building, there is a public rasta shown in yellow colour and this site plan was proved in earlier suit titled “Babu Lal Versus Jagmal” decided on 29.04.1993. Ex.PW6/1 is the sale deed of Co- operative Agriculture Society executed in the year 1967 and the same has been duly proved showing that in the southern side of the Co-operative Agriculture Society, there is a public rasta. The case of the plaintiff is also that there is a public rasta in the southern side of Co-operative Agriculture Society, Dahina. Defendants alleged that the said rasta is their private rasta but the defendants have failed to prove the said alleged fact. Even the report of Local Commissioner shows the existence of rasta on the spot. Learned counsel for the appellants-defendants has also contended that civil Court is having no jurisdiction to decide the dispute regarding the public rasta which vests in Gram Panchayat and that the matter can only be decided by competent revenue Court under Punjab Village Common Lands Act, 1961 and he also placed reliance upon Surain Singh Vs. Gram Panchayat, Raipur, Peerbuxwala and others 2000(2) P.L.J. 194; Mange Ram Vs. Dev Dutt etc. 1998 (2) R.C.R. (Civil) 456; Kartar Singh (dead) through LRs Vs. Gram Panchayat, Laroi 1997 (1) R.C.R. (Civil) 421; Rakha Singh Vs. Babu Singh and others 1986 R.R.R. 551; and Mehar Singh and others Vs. Sardara Singh and others 1989 (1) Recent Revenue Reports 504. 3 RSA No.4166 of 2010(O&M) However, the plea is without any basis. None of the authorities cited by the learned counsel for the appellants-defendants is applicable in this case. In this case, the dispute is not as to whether the rasta in dispute vests or does not vest in Gram Panchayat. Rather the dispute is that the present appellants-defendants intend to encroach upon the rasta in dispute by raising construction and hence, the respondent- plaintiff who is having his house situated in the said gali and also using the said gali, is having locus-standi and right to challenge the said action of the appellants-defendants in the civil Court by filing a suit for injunction and to seek the requisite remedy under the law. In view of these facts, it cannot be said that any illegality has been committed by learned first appellate Court in accepting the appeal filed by the respondent-plaintiff. The impugned judgment passed by learned first appellate Court is justified and sufficient reasons have been given for reversing the finding given by learned trial Court. The impugned judgment is not shown to be perverse or illegal nor it is based on misreading or mis-appreciation of the evidence. Hence, the impugned judgment does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. ( RAM CHAND GUPTA ) December 08, 2011. JUDGE Sachin M. 4