Harbhajan Singh vs Amrik Singh And Others on 3 November, 2009

RSA No.3972 of 2009 (O&M)                                                   1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

                                R.S.A. No. 3972 of 2009 (O&M)
                                Date of Decision: November 03, 2009




Harbhajan Singh                                    ...........Appellant



                               Versus



Amrik Singh and others                              ..........Respondents



Coram:       Hon'ble Mrs. Justice Sabina

Present: Mr.Sandeep S.Majithia, Advocate for the appellant.


                               **

Sabina, J.

Plaintiffs filed a suit for permanent injunction. The suit of

the plaintiffs was decreed by the Civil Judge (Junior Division) Amritsar

vide judgment and decree dated 23.9.2008. The appeal filed by defendants

was dismissed by the Additional District Judge, Amritsar vide judgment and

decree dated 7.9.2009. Hence, the present appeal by the defendants.

The facts of the case, as noticed by the Additional District

Judge in paras 2 to 5 of its judgment, read as under:-

” 2. The brief facts of the present case are like this that

plaintiffs Amrik Singh and others have filed suit for permanent

injunction restraining the defendants from demolishing the

passage which passed through the land bearing khasra No.2315

Northern side ( 9 marlas out of 7 kanals 4 marlas), 23/14(9 marlas
RSA No.3972 of 2009 (O&M) 2

out of 7 kanals 4 marlas) and 23/12 (4 marlas out of 1 kanal 6

malas) and leads to the house of plaintiffs as mentioned in the

jamabandi for the year 2000-01, and as described and detailed in

the head note of the plaint. It has been alleged by the plaintiffs

that they are co-owerns in respect of land bearing khewat No.240

khasra No.23/14 measuring 7 kanals 4 marlas situated in village

Rakh Jhita, Tehsil and District Amritsar. Similarly, the defendant

No.5 is owner in respect of land bearing khewat No.235, khasra

No.23/15 measuring 7 kanals 4 marlas. It has been further

pleaded by the plaintiffs that there is a passage on the Northern

side of land bearing khasra No.23/15 (7K-4M) having an area of

9 marlas out of the said total area of 7 kanals 4 marlas as per

revenue record. Similarly, area of 9 marlas out of total area of

khasra no.23/14(7K-4M) is also under the said passage which

connects with a passage over an area of 4 marlas out of khasra

no.23/13 leading to the house of the plaintiffs. It has been further

pleaded that the said passage is duly depicted in the revenue

record and the house of the plaintiffs is situated in khasra No.

23/26 and 23/13. It has been further pleaded that the defendants

have no right, title or interest over the area under passage, hence,

they have no right to demolish the passage in dispute. It has been

further pleaded that the passage in dispute is only available access

to the houses of the plaintiffs. It has been further pleaded that the

defendants having malafide and dishonest intentions have

threatened the plaintiffs that they would demolish the passage in

question and thereby the plaintiffs would be deprived the access
RSA No.3972 of 2009 (O&M) 3

to their houses. It has been further pleaded that the plaintiffs have

requested to the defendants not to take law into their own hands

but the defendants are adamant in their threats which has given a

rise to the cause of action, hence, the present suit.

3. Notice of the suit was given to the defendants.

Defendants put their appearance and filed their written statements

through their counsels. Defendants No. 1 to 4 in their written

statement have taken the preliminary objections that the plaintiffs

have not come to the court with clean hands and they have

suppressed the material facts from the court and as such, they are

not entitled to the discretionary relief of injunction. It has been

further pleaded that the plaintiffs are guilty for forging and

manipulating the documents due to which also they are not

entitled to the discretionary relief of injunction. It has been

further pleaded that the present suit filed by the plaintiffs is not

maintainable and the said suit has been filed in connivance with

defendant No.5 who has been impleaded as party just in support

of plaintiffs. It has been further pleaded that the suit of the

plaintiffs is bad for mis-joinder and non-joinder of necessary

parties. The defendants have denied the fact that the plaintiffs are

co-sharers in respect of the land bearing khewat No.240, khasra

No.23/14 measuring 4 kanals 4 marlas situated in village Rakh

Jhita, Tehsil amd District Amritsar. The defendants have also

denied that defendant no.5 is owner in respect of khewat No.235,

khasra No.23/15 measuring 7 kanals 4 marlas. It has been

specifically pleaded by the defendants that the land bearing khasra
RSA No.3972 of 2009 (O&M) 4

No.23/14 is owned and possessed by defendant No.1 and the land

baring khasra No.23/15 is owned and possessed by Banta Singh,

father of defendant No.1. It has been further pleaded that

defendant No.5 in connivance with plaintiffs had tried to grab the

land of Banta Singh, father of defendant No.1, and they had also

made an attempt to interfere into the peaceful possession of father

of defendant No.1 due to which Banta Singh had to file civil suit

for permanent injunction and said civil suit was pending in the

court of Shri T.S.Bindra, Civil Judge (Junior Division) Amritsar

and the order of status quo was passed regarding the said land in

favour of defendants. It has been further pleaded that the

plaintiffs are in connivance with defendant No.5 and have openly

violated the status quo order passed by the court due to which

contempt application is also pending against them. The

defendants have denied the existence of passage on the Northern

side of the land a pleaded by the plaintiffs. The defendants have

further pleaded that the area alleged to be under passage actually

is the area under ownership and possession of Banta Singh, father

of defendant No.1 and plaintiffs have intentionally and willfully

not filed site plan of their properties. It has been further pleaded

that the site plan attached with the written statement clearly shows

that the plaintiffs are having passage from the Northern side of

their houses, hence, the site plan attached with the plaint is wrong.

Rest of the material averments have been denied by defendants

No. 1 to 4.

5. Defendant No.5 in his separate written statement has also
RSA No.3972 of 2009 (O&M) 5

pleaded that the suit of the plaintiffs is not maintainable and the

plaintiffs are estopped by their act and conduct to file the present

suit. It has been further pleaded by defendant No.5 that the

plaintiffs have not come to the court with clean hands, hence, the

plaint is liable to be rejected. It has been further pleaded that the

suit of the plaintiffs is bad for mis-joinder and non-joinder of

necessary parties. It has also been pleaded that no threat has been

given by defendant No.5 to demolish the passage. The defendant

No.5 has admitted the fact that there is existing a

passage/common passage at the spot as pleaded by plaintiffs and

the said passage is being used by the plaintiffs and defendant No.5

for their ingress and outgress. The defendant No.5 has admitted

the fact that passage in dispute is leading to the house of the

plaintiffs. Rest of the material averments have been denied by

defendant No.5.”

On the pleadings of the parties, the following issues were

framed:-

“1.Whether the plaintiff is entitled to permanent injunction as

prayed for?OPP

2.Whether the suit is legally not maintainable under the

law?OPP

3.Whether the plaintiff is estopped by his own act and conduct

from filing the instant suit?OPD

4.Whether the plaintiff has not come to the court with clean

hands?OPD
RSA No.3972 of 2009 (O&M) 6

5.Whether the suit is bad for mis-joinder and non-joinder of

necessary parties and cause of action ?OPD

6. Relief.”

After hearing the learned counsel for the appellant, I am of

the opinion that the present appeal deserves to be dismissed.

Plaintiffs had filed the suit for permanent injunction that the

defendants be restrained from demolishing the passage in dispute. It has

been noticed by the Courts below that as per Khasra Girdwari (Exhibit P2),

there was a passage in existence as alleged by the plaintiffs. As per the site

plan placed on record by the appellant (Exhibit DY), there was a phirni near

khasra No. 23/14 and 23/15. Khasra No.23/15 is owned by Banta Singh as

a co-sharer. It has been observed by the Additional District Judge that as

per Exhibit D1, entry in the khasra girdawari qua Khasra No.23/15, a gair

maursi house as well as passage has been depicted. The learned trial Court

in the judgment has observed that appellant-Harbhajan Singh claimed to be

in exclusive possession of Khasra No.23/13 but this claim was not believed

in earlier litigation by the District Judge Amritsar in judgment (Exhibit PX).

Appellant- Harbhajan Singh admitted that Khasra No.23/14 was jointly

owned by Amrik Singh, Lal Singh and Kuldip Singh,whereas, Lal Singh

was in exclusive possession of the said khasra number. Both the Courts

below, after appreciating the evidence led by the parties on record, have

given a finding of fact that passage existed at the spot, as alleged by the

plaintiffs. The said finding of fact cannot be interfered by this Court in

appeal.

RSA No.3972 of 2009 (O&M) 7

No substantial question of law arises in this regular second

appeal which would warrant interference by this Court. Accordingly, this

appeal is dismissed.

( Sabina )
Judge
November 03, 2009
arya