R.S.A.No. 2610 of 2006 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 2610 of 2006
Date of decision: 31.7.2009
Shri Chand
......Appellant
Versus
Mange Ram and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.M.Singh,Advocate,
for the appellant.
Mr.Manoj Sood, Advocate,
for respondent Nos. 1 to 3.
Mr.Lokesh Sinhal, Advocate,
for respondent Nos. 4 to 7.
****
SABINA, J.
Plaintiff -Shri Chand filed a suit for permanent injunction,
which was dismissed by the Civil Judge (Jr.Divn.) Faridabad vide
judgment and decree dated 10.11.2003. In appeal, the said
judgment and decree were upheld by the Additional District Judge,
Faridabad vide judgment and decree dated 26.4.2006. Hence, the
R.S.A.No. 2610 of 2006 2
present appeal.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 to 5 of its judgment, are as under:-
“2. That he is absolute owner in possession of a
plot measuring 268.9 sq.yards forming part of Rect/Khsra
No.19/19/1 (3-13) (described in detail in para No.1 of the
plaint) which was purchased by him vide sale-deed
No.2008 dated 4.9.1986 and Sale Deed No.5686 dated
9.11.1990. He has constructed two rooms in the said plot
and planted two trees and also constructed khor etc. He
has only one rasta (passage) to his plot which is shown in
red colour in the site plan and is marked by letters A B F
G. However, the said plot is marked by letters C D E F
and is shown in blue colour. He was given 7′ wide and
27′.6″ in length rasta by the vendors and he also
purchased the rakba of rasta adjoining to the rasta of 7′
wide i.e. 1′ x 27′.6″ from the vendors. As such the rasta
shown in the enclosed site plan in red colour and marked
by letters A B F G is now 8′ x 27′.6”. This rasta leads to
the aforesaid plot of plaintiff and he is using the same
since the purchase without any interruption from any
person. The defendants or any other person have no
concern with this rasta. However, the defendants being
strong headed persons are now bent upon to grab the
R.S.A.No. 2610 of 2006 3said rasta marked by letters A B F G by closing/blocking
the same illegally and have threatened to raise
construction thereon. They have also collected building
material for this purpose.
3. Plaintiff further averred that there is no other
rasta for egress and ingress to his house and he has
an easementary right over it for proper use and
enjoyment of the same. As such plaintiff sought a
decree of permanent injunction against the defendants.
A decree of mandatory injunction was also sought by
the plaintiff pleading that since defendants have
encroached upon the rasta in question during
pendency of the suit after vacation of stay orders,
therefore, they be directed to remove all the
constructions and obstruction from the said rasta.
4. Defendants contested the suit. In the joint
written statement filed by defendants no. 1 to 3, it is
pleaded that they are absolute owners in possession of
a plot measuring 212 sq. yards which is forming part of
Killa No.19/19/1 about 7 marlas situated within the
revenue estate of Mauja Garkhera Tehsil Ballabhgarh,
District Faridabad which was purchased by their father
Bhajni from Harbans vide registered sale deed No.2878
dated 10.6.1982 which is bounded in East by fields plot
R.S.A.No. 2610 of 2006 4of Brahm s/o Hari Lal, West by house of Rajender and
plot of Shri Chand, North by 11′ wide rasta and South
by plot of Siri Chand son of Bhanwar Singh. The said
plot is marked by letters A B C D E F and is shown in
green colour in the enclosed site plain. They have also
constructed a Tin shed khors, Bitore-Bonga etc. and
building material is also lying on the suit property for
the purpose of further construction by them. There is
no rasta in the plot which is shown in green colour in
the enclosed plan and the said plot is marked by letters
AB C D E F. Plaintiff has no right, title or interest
whatsoever with the rasta over the plot of defendants.
The defendants are absolute owner in possession of
the said plot which is shown by plaintiff in red colour in
his site plan marked by letters GHIJKL. It is denied that
plaintiff has only one rasta shown in red colour.
Defendants No.1 to 3 pleaded that there is a separate
rasta measuring 7′ wide which is adjacent to the plots
of plaintiff towards the Western side. It is denied that
plaintiff was given 7′ wide and 27′.6″ in length rasta by
the vendors or that plaintiff purchased the rakba of said
rasta from the vendors. It is pleaded that vendors have
no right to sell the property belonging to defendants as
there is no rasta over the suit property. There is a plot
R.S.A.No. 2610 of 2006 5belonging to defendants and is in their use and
occupation. Other material obligations of the plaintiff
have also been denied with the prayer for the dismissal
of the suit.
5. Defendants No. 4 to 7 also filed their joint
written statement with the preliminary objection that the
suit is not maintainable against them because neither
the amended plaint discloses any proper cause of
action against them nor any relief has been sought
against them. Hence, they are unnecessary and
improper parties in this case. On merits the site plan of
the plaintiff has been disputed. However, it is admitted
that on the West of the alleged suit property, there is
house of Rajender and his brothers i.e. answering
defendants and on the North there exists a house of
Rajender etc. and rasta 27.6″x8″ which leads to the plot
of plaintiff and next rasta 11′ wide and on the South
there is land of Dharma. Other material allegations
have been denied by the defendants No. 4 to 7 and
claimed compensatory costs under Section 35-A of
CPC against the plaintiff.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether there is any rasta to the house of the
R.S.A.No. 2610 of 2006 6plaintiff as alleged and shown by letters A B F G in the
site plan? OPP
2. Whether the plaintiff has a right of easement
of necessity, if so, to what effect? OPP
3. Whether the suit is not maintainable in the
present form? OPD
4. Whether the suit is bad for non-joinder and
misjoinder of parties OPD
5. Whether the plaintiff has no locus standi and
cause of action to file the present suit? OPD
6. Whether the plaintiff is estopped from filing the
present suit? OPD
7. Relief. “
After hearing learned counsel for the parties, I am of the
opinion that the present appeal deserves to be dismissed.
The plaintiff had filed a suit for permanent injunction
restraining the defendants from interfering in his peaceful possession
of the suit property/passage marked A B F G in the site plan. The
case of the plaintiff was that he was owner of the passage in dispute
as the said passage was mentioned in the sale deed, vide which he
had purchased the house owned by him. The passage in dispute led
to the main road, which was 11′ wide. The defendants had no
concern with the passage in dispute and could not block the same.
The plaintiff claimed right of easement with regard to the passage in
R.S.A.No. 2610 of 2006 7
dispute.
The case of the defendants, on the other hand, is that no
such passage existed at the spot. In fact, the plaintiff had a passage
on the Western side of his house which led to the main road.
During the course of arguments, learned counsel for the
appellant has drawn my attention to the site plan Ex.P-3. A perusal
of the same reveals that although the passage A B F G in dispute
has been shown on the Northern side of the house of the plaintiff,
which is bounded by house of Rajender and Data Ram leading to the
main road, however, on the Western side, 7′ wide passage has
been shown, which leads to the main road, which is 11′ wide.
Learned counsel for the respondents have relied upon
site plan Ex.DW-5/A. A perusal of the same reveals that there is a 7′
wide passage on the Western side of the house of the plaintiff, which
leads to the main road.
A perusal of both the site plans shows that there is a
passage leading from the house of the plaintiff to the main road on
the Western side and hence, it cannot be said that the plaintiff has no
passage to reach the main road. Both the Courts below, after
appreciating the evidence led by the parties have given a finding of
fact that no passage in dispute A B F G exists at the spot, which was
being used by the plaintiff. The said finding of fact cannot be
interfered with by this Court in appeal. Learned counsel for the
appellant has failed to establish that plaintiff was the owner of the
R.S.A.No. 2610 of 2006 8
passage in dispute. The Courts below rejected the report of the
Local Commissioner on the ground that the same had been prepared
without taking into account the revenue record or any sale deed. The
plaintiff had also failed to establish that he had been using the
passage in dispute for the last more than twenty years as he had
purchased the suit property only in the year 1986 and 1990, whereas,
the suit was filed by the plaintiff in the year 2000.
In these circumstances, the Courts below had rightly
dismissed the suit of the plaintiff.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
July 31, 2009
anita