R.S.A.No. 1659 of 2003 {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1659 of 2003
Date of Decision:July 17, 2009
Sadhu Singh
---Appellant
versus
Sukhwinder Singh and another
---Respondents
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr. Manoj Kumar,Advocate,
for the appellant
Mr.Nitin Setia, Advocate,
for Mr. G.S.Kaura, Advocate
for the respondents.
***
SABINA, J.
Plaintiff – Sadhu Singh had filed a suit for permanent
injunction restraining the defendants from making any type of encroachment
over the suit land. Additional Civil Judge ( Sr. Division), Amloh vide
judgment and decree dated 10.11.2001 dismissed the suit of the plaintiff.
Aggrieved by the same, plaintiff preferred an appeal and the same was
dismissed by Additional District Judge,Fatehgarh Sahib vide judgment and
decree dated 15.3.2003. Hence, the present appeal.
The facts of the case as noticed by the learned Additional
R.S.A.No. 1659 of 2003 {2}
District Judge, in paras 2 and 3 of its judgment read as under:-
“In brief the facts of the suit of the plaintiff/appellant as set up
in the plaint before the Ld. Trial court are that he is permanent
resident of village Ambe Majra. The passage in question is
leading before the house of the appellant and other persons of
the village from the pucca road to village Mullandpur Kalan.
The passage in question is also shown in the record of BDO
Sirhind. BDO Sirhind also visited the spot and made report
regarding the passage. The passage were left by the Gram
Panchayat of vil. Ambe Majra vide resolution dt. 9.11.1986.
The plot and residential houses of the appellant and other
persons of the village are on the said street/passage. The
respondents have no right or concern with the passage in
dispute. They are threatening to encroach upon the passage
forcibly. The appellant/plaintiff requested the respondents to
desist from the evil designs but they refused, which compelled
the plaintiff/appellant to file suit against the respondents.
The respondent/defendants in their written
statement took preliminary objections that the appellant has not
come to the court with clean hands. He has concealed the
material facts, there exist no passage in dispute as alleged. In
fact, the site in dispute bear Khasra No. 63 min which has been
duly mentioned in the jamabandi as well as in the khasra
girdawari by the Revenue authorities. There exists no street in
the site in dispute as alleged by the appellant. There is a pucca
street in front of the house of the respondents. The respondents
R.S.A.No. 1659 of 2003 {3}
have purchased 1K- 10 M of land from khasra No. 63 min
through registered sale deeds with possession. They have
constructed residential houses in the land measuring 1K-10M
purchased by them. They have also fixed pegs and planted
threes in the property in dispute. They have also constructed
boundary wall around the property in dispute and fixed main
iron gate for their entrance. The site plan produced by the
appellant is not correct according to the spot. Appellant is a
influential person. He with the help of police got some portion
demolished of the western wall or the house of the respondents
forcibly and got them booked u/s 107/151 of Cr.P.C. The suit
is bad for mis-joinder and non-joinder of the necessary parties.
The suit has been filed with mala fide intention to harass the
defendants/respondents. All other para-wise contents of the
plaint are denied and prayed for dismissal of the suit with costs.
On the pleadings of the parties, trial court framed the following
issues:-
“(1)Whether site in dispute is a street? OPP
(2)Whether defendants are illegally encroaching the street in
question?OPP
(3)Whether plaintiff is entitled to injunction as prayed for? OPP
(4)Whether suit is not maintainable in the present form? OPD
(5)Whether plaintiff has got no locus-standi to file the present
suit? OPD
(6)Whether suit is bad for misjoinder and non-joinder of the
necessary parties? OPD
R.S.A.No. 1659 of 2003 {4}(7)Relief.
After hearing learned counsel for the appellant, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiff-Sadhu Singh filed a suit for permanent injunction
restraining the defendant from making any type of encroachment over the
suit land.
Case of the plaintiff was that the suit property was a street and
defendants had illegally encroached upon the same. The question that
requires consideration is as to whether the plaintiff has been successful in
establishing that the suit property was a street. It has been notice by the
learned Additional District Judge in its judgment that plaintiff in his cross
examination had admitted that defendants had purchased 1Kanal -10
Marlas of land from Custodian Department and they were in possession of
the same. Plaintiff also admitted that the suit property was duly reflected in
the jamabandi and panchayat had no concern with the suit land as it vests
in the Custodian Department. There was no threat or overt act attributed
by the plaintiff in his statement on oath in the court to the defendants.
Since, the plaintiff had failed to attribute any threat or overt act to the
defendants, no injunction could be granted in favour of the plaintiff. The
property in dispute was bearing Khasra No. 63 min and had been
purchased by the defendants vide sale deeds Ex. D-1 and D-2. No record
was proved on the file that the office of the Block Development Officer had
declared the existence of street in question. Local Commissioner, who was
got appointed by the plaintiff in this case did not furnish any report,
however, the Local Commissioner got appointed by the defendants had
submitted report Ex. D-4 as per which no passage existed at the spot.
R.S.A.No. 1659 of 2003 {5}
Learned counsel for the appellant has failed to point out any
error in the observations made by learned Additional District Judge. In
these circumstances, no interference by this Court is called for.
No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
July 17, 2009
PARAMJIT