RSA No.932 of 2007 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 26.8.2009
(i) RSA No. 932 of 2007
Anil Kumar Modi and others ......Appellant
Versus
Tarsem Kumar Gupta .......Respondents
(ii) RSA No. 941 of 2007
Anil Kumar Modi and others ……Appellant
Versus
Tarsem Kumar Gupta …….Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Arun Jain, Senior Advocate, with
Shri Vishal Sharma, Advocate, for the appellants.
Ms. Poonam R. Mehta, Advocate, for the respondent.
HEMANT GUPTA, J. (Oral).
This order shall dispose of RSA No. 941 and 932 of 2007, as
both the appeals raise common questions of law and facts.
The defendants are in second appeal aggrieved against the
judgment and decree passed by the learned first Appellate Court, whereby
suit for permanent injunction filed by the plaintiff-respondent was decreed
RSA No.932 of 2007 (2)
and the counter claim filed by the defendants was dismissed.
The plaintiff has claimed decree for permanent injunction on
the plea that open space measuring 62′-6″x10″ between the house of the
plaintiff and the defendant is a private passage, but with the restriction that
the defendants are entitled to open windows with iron rods in their wall.
The plaintiff has put pucca bricks upto the height of 6 feets to prevent the
cattle; stray dogs and trespassers from entering into the personal passage of
the plaintiff, whereas the defendants are threatening to remove the stack of
bricks lying on the said passage, for which they have no right in view of the
previous litigation between the parties. The defendants filed a counter
claim asserting that they have a right to use passage in dispute, sought
direction to the plaintiff to remove the bricks blocking the passage.
Earlier, plaintiff Tarsem Lal, had filed a suit for injunction
against the Municipal Committee, pointing out that there is a passage
towards the eastern side of the building purchased by the plaintiff and that a
latrine is in existence in the passage for the last 10 years, but the Municipal
Committee has served two notices dated 10.1.1976 under Sections 195 and
195-A of the Punjab Municipal Act, 1911, to remove the said latrine. Since
the Municipal Committee, threatened to demolish the disputed latrine, the
plaintiff filed Civil Suit No. 323 dated 17.7.1976 for permanent injunction.
The predecessor-in-interest of the defendants, namely, Kewal
Krishan, filed a suit for mandatory injunction (Civil Suit No. 403 of
7.8.1976) claiming that the plaintiffs are owners of the property marked by
letters `C’, whereas the defendants are owners of the property marked by
letters `D’. Between the properties of the plaintiff and defendants, there is a
public passage of the width of 10 feet, whereon the defendants have
RSA No.932 of 2007 (3)
constructed a latrine about 10/11 months back. It was thus alleged that no
construction is permissible over the aforesaid passage of 10 feet wide. A
perusal of the judgment Exhibit P.7 in the previous suits, which were
consolidated and a common judgment delivered, would show that issue
No.1 was to the effect whether Tarsem Lal (plaintiff) was entitled to
injunction prayed for, whereas issue No. 6 was whether there exists 10 feet
wide public passage between the property of the plaintiff and the defendant.
Under issue No. 3, the learned trial Court returned the following finding.
“…In view of my aforesaid discussion I feel that the
defendant Municipal Committee is within its rights to
seek removal of the disputed latrine. Moreover, as
already stated above the disputed latrine is in existence
in a passage which is required to be used as such and the
plaintiff had no right to build any latrine in the passage
even if the same be a private one. The existence of latrine
is a permanent source of nuisance to the residents of the
locality and the same has been built by placing a lintel of
the same in the wall of the house of Kewal Krishan and
he is fully justified to seek its removal. The plaintiff is,
therefore, hardly entitled to the discretionary remedy of
injunction from the court. This issue is accordingly found
and decided against the plaintiff.”
Under issue No. 6 a finding was returned that though it is a
private passage of Tarsem Lal and other co-sharers, but Kewal Krishan and
others have a right to open windows and ventilators of their houses with
opening towards the said passage. It was recorded as under:-
“Issue No. 6:-
As discussed above there was to be a passage of 10 feet
width towards the eastern side of the house of Tarsem
Lal and others. Even in the site plan (Ex.PW1/A)
RSA No.932 of 2007 (4)
prepared by Shamsher Singh (PW1), it is evident that the
impugned passage is in existence at the spot. However,
as already discussed above, the disputed passage appears
to be a private one belonging to Tarsem Lal plaintiff and
others but Kewal Krishan and other owners of the
adjoining property have the right to open windows and
ventilators of their houses towards the disputes site. This
issue is decided accordingly.
The appeals filed against the aforesaid judgment and decree
were decided on 12.1.1983 Exhibits D.10 and D.11, wherein it was inter-
alia, observed that rival plaintiff (Kewal Krishan) has also a right in this
passage. The Regular Second Appeals Exhibit D.12 against the aforesaid
judgment and decree were dismissed by this Court on 11.8.1983.
Learned counsel for the appellant has vehemently argued that
in the previous proceedings the 10 feet wide passage, has been recognised
between the house of the plaintiff and the defendants. It is contended that
the first Appellate Court has also recorded a finding that the predecessor-
in-interest of the appellants has also a right in this passage. Therefore, the
plaintiff Tarsem Kumar has no right to block the said passage. It is further
contended that the findings recorded in the previous suit, will operate as
res-judicata and the present plaintiff cannot be permitted to re-agitate the
same issue again.
I have heard learned counsel for the parties and with their
assistance gone through the record as well.
A perusal of the judgment and decree passed in the previous
proceedings passed by the trial Court would show that a finding has been
returned that 10 feet wide passage in existence between the houses of the
plaintiff and the defendant is a private passage of the plaintiff Tarsem Lal
RSA No.932 of 2007 (5)
and other co-owners. The latrine constructed by the plaintiff Tarsem Lal
was found to be a source of nuisance as it was adjoining the wall of the
defendant Kewal Krishan. Thus, the plaintiff was directed to remove such
latrine. The defendant (Kewal Krishan) was also permitted to construct
ventilators and windows in the wall, which is opening towards such
passage.
Once, such issue has been decided in the previous proceedings
between the parties, inter-se, the finding thereon operates as res-judicata.
In view of the said proceedings, wherein a categorical finding has been
recorded that it is a private passage of the plaintiff and his other co-sharers,
the defendants cannot restrain the plaintiff from constructing a wall. The
construction of 6 feet wall is neither obstructing the windows nor the
ventilators of the appellants. Therefore, the appellants cannot be permitted
to re-agitate the issue which has attained finality in the previous
proceedings.
Consequently, I do not find any patent illegality or material
irregularity in the findings recorded or that the findings recorded give rise to
any substantial question of law in the present second appeals.
Hence, the present appeals are dismissed.
(HEMANT GUPTA)
JUDGE
26.8.2009
ds