Regular Second Appeal No. 2772 of 2006 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 2772 of 2006
Date of decision : May 18, 2011
Hari Singh
....Appellant
versus
Raghu Nath and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. JS Virk, Advocate, for the appellant
Mr. RS Mamli, Advocate, for respondent no. 1
Mr. Rameshwar Malik, Advocate, for respondent no. 4
L.N. Mittal, J. (Oral)
Defendant no. 1 Hari Singh has filed the instant second appeal.
Respondent no. 1 – plaintiff Raghu Nath filed suit against
defendant no. 1 – appellant and respondents no. 2 to 4 as defendants no. 2
to 4 i.e. Mehar Singh, Madan Lal and Municipal Committee, Ladwa. The
plaintiff’s case is that defendants no. 1 to 3 threatened to encroach upon
Gair-Mumkin Rasta comprised of khasra no. 84 measuring 1 kanal 6 marlas
(vesting in respondent no. 4 – Municipal Committee).
Defendants no. 1 and 2, inter alia, pleaded that defendant no. 2
is owner of the land in question and he was laying lintel on old building and
Regular Second Appeal No. 2772 of 2006 -2-
has not dug any foundation for raising new construction. It was also
pleaded that passage is owned by Gram Panchayat.
Defendant no. 3 remained ex parte in the trial court.
Defendant no. 4 contested the suit and pleaded that it has
sought the demarcation of the suit property through Tehsildar.
Learned Additional Civil Judge (Senior Division), Kurukshetra
vide judgment and decree dated 30.8.2005 dismissed the plaintiff’s suit.
However, first appeal preferred by the plaintiff has been allowed by learned
District Judge, Kurukshetra vide judgment and decree dated 25.5.2006 and
thereby suit of the plaintiff has been decreed directing defendants no. 1 to 3
to remove encroachment of the shops from the disputed passage. They have
also been restrained from raising any construction in the street. Feeling
aggrieved, defendant no. 1 has preferred the instant second appeal.
I have heard learned counsel for the parties and perused the
case file.
Demarcation of the disputed passage was made vide
demarcation report Ex. P2 coupled with site plan Ex. P3. Relying thereon,
learned appellate court has decreed the plaintiff’s suit. However, perusal of
the said demarcation report reveals that defendant no. 2 has encroached
upon 1ΒΌ marlas i.e. 15 x 42/2 feet out of the disputed passage and
defendant no. 3 has encroached upon 1 karam wide area of the disputed
passage and 55 karams long and 5 feet wide passage has been encroached
upon by Gurudwara (not party to the suit). It is, thus, apparent from the
demarcation report that defendant no. 1 appellant had not encroached upon
Regular Second Appeal No. 2772 of 2006 -3-
any part of the disputed passage nor there is any other material on record to
depict that defendant no. 1 had encroached upon any part of the disputed
passage. Consequently, mandatory injunction directing defendant no. 1 to
remove encroachment could not be issued when it is not established that he
had made any encroachment in the disputed passage. Direction of the lower
appellate court to this extent is perverse and illegal and is liable to be set
aside. Substantial question of law to this effect arises for determination in
the instant second appeal and the same is answered accordingly.
However, it has to be clarified that decree of permanent
injunction against defendant no. 1 also has to be affirmed because he has no
right to raise any construction in the disputed passage.
For the reasons aforesaid, the instant second appeal is allowed
partly. Judgment and decree of the lower appellate court are modified to
the extent that decree for mandatory injunction shall subsist against
defendants no. 2 and 3 only. Decree for mandatory injunction against
defendant no. 1 – appellant is set aside. However, decree for permanent
injunction shall subsist against defendant no. 1 as well as against
defendants no. 2 and 3.
( L.N. Mittal )
May 18, 2011 Judge
'dalbir'