R.S.A No. 3817 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A No. 3817 of 2002 Date of Decision:- 27.5.2009 Nar Singh and Ors. .... Plaintiffs-applicant. Versus Ram Bhagat and Ors. .... Respondents. Present:- None for the Plaintiffs. Mr. Kulvir Narwal,, Advocate, for the respondent No. 4. A.N.Jindal, J. This is second appeal filed by the plaintiffs against the judgment and decree dated 19.12.2001 passed by Additional District Judge, Jhajjar whereby he had accepted the appeal filed by defendants-respondents (herein referred as 'defendants') and dismissed the suit of the plaintiffs. The matter relates to right of easement over the plot admittedly owned by the plaintiffs. Factual matrix of the case is that plaintiffs having purchased a plot comprised of Khasra No. 817/798, Khatoni No. 859, Plot No. 381 (1-8) Gair Mumkin Gher situated with the revenue estate of village Bupania are the owners in possession of the same. There exists a street about 30 feet wide and to the length of 60 feet leading from south to the north on the northern side of the plot of the plaintiff and they were using it as street. On being threatened by the defendants to encroach upon the street, the plaintiffs had to file the instant suit. During the trial defendant Jageram died and his LRs Randhir and Ram Bhagat contested the suit along with other defendants. Anyway Randhir Singh and Ram Bhagat contested the suit by submitting that Plot R.S.A No. 3817 of 2002 2 No. 381 and 595 were allotted to them by the consolidation authorities and Plot No. 595 was allotted in the name of defendant No.1 and his brother Daya Ram. The said plot adjoins to the main passage leading to village Gangarwa and Plot No. 381 is situated towards West south corner of plot No.595 of defendants. It was further averred that at the time of consolidation, a separate street towards south and north was carved out for plot No. 381, which leads from East to West and North to South respectively. It is further alleged that the street in dispute was left by the defendant No. 1 and his brother for their personal use and the plaintiffs have no concern with the same. Raplication was also filed. Vide order dated 10.8.1992, the trial Court framed the following issues:- 1. Whether plaintiff has acquired the right of easement over street in question as alleged? OPP. 2. Whether plaintiff has no cause of action to file the suit? OPD. 3. Whether plaintiff has no locus standi to file the present suit?OPD. 4. Whether Suit is not maintainable in the present form? OPD. 5. Whether plaintiff is estopped from filing the suit by his own act and conduct. OPD. 6. Whether defendant is entitled to special costs, if so, to what amount? OPD. 7. Relief. Both the parties have led evidence. The trial Court while deciding Issue No.1 observed as under:- “Hence from the entire evidence produced on record by defendants, it has been proved that there is no steet towards R.S.A No. 3817 of 2002 3 southern side of plot of plaintiffs and in Akas Sijra produced by defendants on record as Ex. DW4/A, which is not in accordance with the spot, because DW4 Raj Kumar Patwari has denied existence of passage No. 379 as shown in the Akas Sijra Ex.DW4/A. As regards passage alleged by defendants towards south side of plot No. 381, that has not been proved in existence and this factum had been admitted by DW1 Hazari and further DW4 Raj Kumar Patwari admitted in cross-examination that there is small red line in original Akas Sijra and further no number of this passage has been recorded in original Akas Sijra. When the passage had been loft during consolidation, then specific red portion in between two lines must have been shown in the Aks Sijra with a number, but there is no number in the Akas Sijra and non existence of this factum in the original Akas Sijra is admitted by DW4 Raj Kumar in cross-examination, which invites an adverse inferrence against the defendants that there is no passage towards south of Khasra No.381 and this factum has further been supported by defendants witnesses particularly of DW1 Hazari Lal. However, the learned Additional District Judge, Jhajjar while observing that there is no revenue record to prove the existence of street whereas the defendant had purchased his plot vide unregistered sale deed on 16.10.1989 wherein the street has been shown. Even the defendants- respondents as well as witnesses produced by him proved the existence of the suit street as well as its use by the plaintiffs, but the said use of the street would not pleaded easement in favour of the plaintiffs, thus while R.S.A No. 3817 of 2002 4 dismissing the right of easement, the appeal was accepted. Arguments heard. Substantial question of law arising in the present case is :- “whether any part of the plot owned by the defendants if used by the plaintiffs for fairly long time as a passage, in that case "whether the plaintiffs could claim right of easement?" Admittedly no revenue record has been placed on the file to show the existence of the suit street. Defendant-respondent had purchased his plot in the year 1989 vide unregistered sale deed 16.10.1989, wherein the existence of the suit street has been shown even the defendants-respondents as well as the witnesses produced by them admitted the existence of the suit street as well as its use by the plaintiff but the use of the suit street in the circumstances of the present case would not creat easementry right over the suit street in favour of the plaintiffs. In the present case, defendants produced Halqa Patwari as DW4 Sh. Raj Kumari, Patwari, who has proved site plan Ex.DW4/A, which shows the existence of another street abutting the plot of the plaintiffs in the southern side, meaning thereby there cannot be any easemetry necessity as there is a sanctioned street in the south of the plot held by the plaintiffs. Ex.DW/4/B shows the existence of the sanctioned passage in Khasra No. 603. Ex. DW4/C shows the respondents to be owners of the plot forming part of Khasra No. 595. In the absence of revenue record, to prove the suit passage as a sanctioned passage, the plaintiff has no legal right or interest in the suit street entitling him to seek the relief of injunction. Learned counsel for appellants made reference to the sale deed Ex.DW5/A, vide which respondents purchased their plot, wherein the existence of the suit passage is shown. It is true that Ex.DW5/A shows the existence of the suit passage but the existence of the passage R.S.A No. 3817 of 2002 5 itself would not show that the plaintiffs have any legal right to pass through the suit passage. Even if they are allowed to be pass through the suit passage and they cannot claim to pass through the passage as of right. Since, the plaintiffs have no legal right or interest in the suit passage, so they have no right to seek the relief of injunction. In the absence of proof of the passage in dispute being sanctioned passage, the plaintiffs cannot claim any easementry right. Consequently, the question as framed is decided in favour of the defendants. Resultantly finding no merit in the appeal, the same is dismissed. May 27, 2009 (A.N.Jindal) tripti Judge