Roop Singh vs Megha Singh on 30 January, 2009

RSA No.3504 of 2006                                1

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                         RSA No.3504 of 2006
                                         Date of Decision:30.01.2009

Roop Singh

                                                   ....appellant

                    Versus

Megha Singh

                                                   .....respondent

CORAM:         HON'BLE MR.JUSTICE RAKESH KUMAR GARG

Present:       Mr.I.S.Brar,Advocate
               for the appellant

          Mr.P.S.Dhaliwal, Advocate
          for the respondent
                ****

RAKESH KUMAR GARG J.

This is plaintiff’s second appeal challenging the judgment

and decrees of the Courts below whereby his suit for permanent injunction

restraining the defendant from blocking or encroaching upon the street as

detailed in the plaint and further restraining him from creating any hurdle in

the use of the said street has been dismissed with costs.

In his suit, the plaintiff-appellant alleged that he is owner in

possession of the house shown in the site plan with letters ACDH and there

exists a street 23′ in width which leads to the main phirni from his house.

The said street is being used by the plaintiff as well as Luddan Singh,

Sunder Singh and other inhabitants. It is two karam wide and was

purchased by the father of the plaintiff from its original owner Megha Singh,

defendant and Banta Singh vide bahi writing dated 15.08.1966. Since

then, the said rasta is in existence. Now the defendant was trying to

encroach upon the street EFGB which will cause the plaintiff an irreparable

loss. Hence this suit.

The defendant contested the suit and filed a written
RSA No.3504 of 2006 2

statement in the Lower Court, wherein he denied the existence of the

street, as alleged by the plaintiff and contended that in view of previously

decided litigation regarding the same rasta, the suit is not maintainable.

With these contentions, the defendant prayed for the dismissal of the suit.

After hearing the parties and going through the evidence on

record the trial Court dismissed the suit of the plaintiff vide judgment and

decree dated 08.11.2005.

The plaintiff filed an appeal challenging the aforesaid

judgment and decree of the trial Court before the Lower Appellate Court

which was also dismissed by the District Judge, Faridkot, vide impugned

judgment and decree dated 09.08.2006.

Still not satisfied, the plaintiff has filed the instant appeal

challenging the judgment and decrees of the Courts below.

I have heard learned counsel for the parties and perused

the record of the appeal. It is relevant to refer to the observations of the

Lower Appellate Court which are as under:

“Before the lower Court, the simple case of the plaintiff

Roop Singh was that he is owner and in possession of a

street shown in the site plan with letters “EFGB”. He has

stated that his father purchased this street from its owners

Mehga Singh (respondent) and Banta Singh, vide a Bahi

writing dated 15.8.1966. Claiming himself to be the owner

in possession of the suit property/passage, on the basis of a

bahi writing dated 15.8.1966, Mark A, the plaintiff prayed for

the issuance of permanent injunction restraining the

defendant Megha Singh from interfering into its use by the

appellant-plaintiff Roop Singh. Before the lower Court,

however, he miserably failed to prove that he or his father

Mukhtiar Singh have ever purchased the rasta in question
RSA No.3504 of 2006 3

from the respondent Megha Singh or Banta Singh or have

got any right to purchase the same. The alleged writing

dated 15.8.1966 has not been proved by the plaintiff. It is

not on a stamp paper, although the valuation of the

immovable property allegedly purchased by Mukhtiar Singh,

father of the plaintiff, exceeded Rs. 100/-, as stated by the

plaintiff Roop Singh PW3 during his cross examination. It

cannot be said to be a valid sale not being on the stamp

paper. Secondly, none of its attesting witnesses has been

examined to prove it. Thirdly, even if being a document of

more than 30 years old, its execution is presumed to be

authenticated, even then this document does not help the

plaintiff because a document, which is invalid being un-

stamped or for any other legal reason does not become

proved only because it is more than 30 years old.

A previous litigation, Civil suit No. 224

dated 24.7.1996, titled Luddan Singh and Sunder Singh

versus Megha Singh, decided by Miss Kiran Bala, then Civil

Judge (Junior Division), Faridkot (copy of order dated

29.9.1997 Ex.P4) also does not help the case of the plaintiff.

In that case, regarding this pahi, a compromise (therein Ex.

C1), had been arrived at between the parties, but the

present appellant-plaintiff Roop Singh was neither the

plaintiff nor the defendant therein and, therefore, he can not

derive any benefit out of it. Similarly, Civil Suit No. 357

dated 25.7.1996, titled Mukhtiar Kaur Vs. Meha Singh,

regarding this litigation, was decided by Shri B.K. Mehta,

then Civil Judge (Junior Division), Faridkot. A copy of the

said order is Ex. D1. That suit was also regarding the same
RSA No.3504 of 2006 4

street and it was filed by Mukhtiar Kaur, mother of the

present appellant-plaintiff. That suit regarding the same

subject matter between the same parties or their

representatives, was abruptly withdrawn by the plaintiff

Mukhtiar Kaur (mother of the appellant Roop Singh) without

getting any finding regarding the subject matter in dispute.

That suit was withdrawn by the predecessor of the appellant

without permission from the Court to file a fresh suit and,

therefore, also the present suit filed by the appellant-plaintiff

Roop Singh before the lower Court, was barred. In all, the

appellant has miserably failed to prove before the lower

Court that he is the owner of the street in question or is

entitled to use it or he or his father has purchased it from the

respondent-Megha. The lower Court has rightly taken note

of these facts and has rightly decided the different issues.

There is no reason to interfere into the findings recorded by

the lower Court, which are upheld.”

Undisputedly, earliler Luddan Singh and Sunder Singh had

filed a suit against Megha Singh in which a compromise Ex.C-1 was

effected and as per this compromise a 10′ wide passage was left for use of

Luddan Singh and Sunder Singh. It is also mentioned in the said

compromise that Roop Singh, present appellant who is the neighbourer of

Luddan Singh and Sunder Singh could also use the said passage and that

the plaintiffs in that case did not have any right over the remaining land.

On the basis of the said compromise, order Ex.P-4 was passed by the

Court. The claim of the appellant that his father had purchased two

karams vide passage from Megha Singh which also formed a part of main

passage 23′ wide has not been proved on the file as the alleged writing

dated 15.08.1966 has not been proved on the file. The aforesaid bahi
RSA No.3504 of 2006 5

writing was maintained by the plaintiff himself and its scribe or witnesses

have not been examined. Thus, the plaintiff-appellant failed to prove his

claim of 23′ wide rasta being in existence.

Therefore, no fault can be found with the concurrent findings

of the fact recorded by the Courts below.

No substantial question of law arises.

Dismissed.

(RAKESH KUMAR GARG)
JUDGE
30.01.2009
neenu