R. S. A. No. 1954 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1954 of 2009 (O&M) Date of Decision : April 21, 2010 Khushi Ram .... Appellant Vs. Smt. Roshni and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjay Mittal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5723-C of 2009 : For the reasons recorded in the application, delay of 85 days in re-filing the appeal is condoned. Main Appeal : This is second appeal by plaintiff Khushi Ram, who has been unsuccessful in both the courts below. The plaintiff filed suit alleging that there is thoroughfare adjacent to plaintiff's plot in abadi deh of Village Fadni and defendants' house exists towards west of the said thoroughfare, but the defendants tried and threatened to encroach upon the said thoroughfare by raising construction thereon. The plaintiff accordingly sought permanent injunction restraining the defendants from raising any construction on the R. S. A. No. 1954 of 2009 (O&M) 2 disputed passage. The defendants inter alia pleaded that no passage, as alleged, exists at the spot and when there is no passage in existence, question of encroachment thereon does not arise. Learned Additional Civil Judge (Senior Division), Rewari, vide judgment and decree dated 06.09.2007, dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Rewari, vide judgment and decree dated 01.09.2008. Feeling aggrieved, the instant second appeal has been preferred by the plaintiff. I have heard learned counsel for the appellant and perused the case file. The plaintiff himself stated in cross-examination that he had earlier filed ejectment application under Section 7 of the Punjab Village Common Land (Regulation) Act, 1961, for ejectment of defendants from the alleged disputed passage and the said ejectment application was dismissed. In view thereof, the plaintiff has no right to file the instant suit. In addition to the aforesaid, the plaintiff admitted in cross- examination that the disputed passage exists in Ahata No.32 and Ghar No.65 and that great grandfather of defendants was owner of Ahata No. 32 and Ghar No. 65, of which the disputed passage is a part. It is thus apparent from the testimony of plaintiff himself that no thoroughfare or passage is in existence at the disputed site and the alleged disputed passage is in fact part of Ahata No.32 and Ghar No.65 owned by defendants and other heirs of their great grandfather. In view of the aforesaid, it cannot be said that there is any infirmity in concurrent finding of the courts below. The said finding is based upon proper appreciation of evidence and is not shown to be perverse or illegal in any manner. Learned counsel for the appellant vehemently contended that R. S. A. No. 1954 of 2009 (O&M) 3 the defendants did not plead that the disputed site is part of their Ahata or Ghar. However, it was not required to be so pleaded specifically by the defendants, particularly because defendants have specifically pleaded that no passage, as alleged by the plaintiff, is in existence at the spot. Moreover, the onus was on the plaintiff to prove that the disputed passage is in existence on the spot for his user. However, plaintiff's own statement demolishes his whole case and the plaintiff has thus miserably failed to prove that there is any passage in existence at the disputed site. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. April 21, 2010 ( L. N. MITTAL ) monika JUDGE