R.S.A. No. 2668 of 2006 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 2668 of 2006 (O&M)
Date of decision: 29.1.2009
Bal Kishan alias Kishan
....Appellant
Versus
Dheera @ Randhir and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. Sanjiv Gupta, Advocate,
for the appellant.
Mr. Maharaj Kumar, Advocate,
for respondent No. 1.
*****
VINOD K. SHARMA, J (ORAL)
This regular second appeal is directed against the judgments
and decree dated 29.11.2005 and 27.5.2006 passed by the learned Courts
below vide which the suit filed by the plaintiff/respondent for mandatory
injunction with a consequential relief of permanent injunction stands
decreed.
The plaintiff/respondent brought a suit on the plea that during
the consolidation procedings, he was allotted a bara measuring
33’x40.9″ in village Dholgarh, Tehsil and District Karnal.
The case set up was that between the baras of the parties, a six
feet wide street had been left at the time of allotment. Out of the said
gali, the appellant/defendants encroached upon 3 feet thereby reducing
R.S.A. No. 2668 of 2006 (O&M)
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the width to half. Mandatory injunction was sought directing the
appellant/defendants to remove the encroachment from the street. It was
further the case set up by the plaintiff that the appellant/defendants were
adamant to further encroach upon three feet of the land of the
plaintiff/respondent and thus, relief of prohibitory injunction was also
claimed.
The suit was contested by the appellant/defendants, wherein
preliminary objection was taken that the plaintiff had not locus standi to
file and maintain the suit. Plea was also raised that the plaintiff had not
come to Court with clean hands. The jurisdiction of the Civil Court to
entertain and try the suit was also challenged.
On merit, it was denied that there was any encroachment by
the appellant/defendants. It was claimed that khor and boundary wall
along with hand pump was installed by the defendants and it was still in
existence. The construction alleged to be encroachment was said to be
25 years old. The defendants asserted that they wanted to demolish the
old construction by raising new construction at the same place. The
width of the gali was 5′-6″ and not 6′, as claimed by the
plaintiff/respondent.
The learned Courts below on appreciaion of evidence have
recorded a concurrent finding of fact that the plaintiff has encroached
upon 3′ of the street and consequently, the suit filed by the plaintiff
stands decreed.
The learned counsel for the appellant raised following
substantial questions of law arise for consideration by this Court: –
“1. Whether the judgment and decree passed by
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the learned Courts below is outcome of
misreading of evidence brought on record
and, therefore, perverse?
2. Whether the learned Courts below were
justified in rejecting the documentary evidence
placed on record by way of Ex. DW-3/3 and
rely upon the report Ex. P-2, which was not
proved in accordance with law?”
This Court on 28.7.2006 was pleased to pass the following
order: –
“After arguing the case for some time, learned
counsel for the appellant contends that even if
the case of the respondents is accepted in toto,
the house constructed by the appellant in his
bara cannot be demolished so long as a street
with six feet width is provided and made
operational in front thereof. It is contended
that if the report Ex.P2 is accepted, still only a
decree of permanent injunction can be passed
and not that of the mandatory injunction.
He contends that the aforesaid limited
clarification may be made by this Court by
calling upon the respondents at the cost of the
appellant.
Subject to deposit of Rs.10,000/- by the
appellant within two weeks from today, let
notice of motion issue to the respondents for
19.9.2006.
Dasti only.
To be shown in the urgent cases.”
Sum of Rs.10,000/- (Rupees ten thousand only) stands
deposited, which the respondents are permitted to withdraw, from the
Court.
The learned counsel for the plaintiff/respondents contends the
statement made by the appellant before this Court on 28.6.2006 and
states that, in fact, there is encroachment of 3′ by the
defendant/appellant, which has to be removed and he is to be further
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restrained from using his bara as passage.
In view of the stand taken by the learned counsel for the
plaintiff/respondents, the learned counsel for the appellant contends that
in the present case, the substantial questions of law, as framed, deserve
to be answered in favour of the appellant, as the learned Courts below
have ignored Ex. DW-3/3 i.e. the report of Patwari, which was prepared
on the spot in the presence of the parties and stood duly proved.
This contention of the learned counsel for the appellant cannot
be accepted. The learned Courts below were right in holding that no
reliance could be placed on Ex. DW-3/3 as it was contrary to the case set
up by the defendant/appellant. The site plan Ex. DW-3/3 prepared by
DW-3 was not as per the site plan, attached with written statement by the
defendant, in support of his defense.
The construction and hand pump which were shown to be
present at the spot, have not been shown. The learned Courts below
rightly observed that DW3 did not consult the revenue record and was
not even aware of the facts. Therefore, the report Ex. DW-3/3 was not
considered. The challenge to Ex. P-2, also cannot be accepted. The
report Ex.P-2 was submitted by the Local Commisioner, appointed by
the Court, to which neither of the parties file any objection.
In absence of the objections having been filed to the report of
Local Commissioner, appointed by Court, the same was accepted and
read in evidence. It is not correct on the part of the defendant/appellant
to contend that the learned Courts below wrongly relied on Ex. P2.
The substantial questions of law, as framed, therefore, deserve
to be answered against the appellant/defendant, as it cannot be said that
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the judgment and decree passed by the learned Courts below is outcome
of misreading of evidence or is outcome of taking into consideration
inadmissible evidence as contended.
No merit.
Dismissed.
(Vinod K. Sharma)
Judge
January 29, 2009
R.S.