Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 194 (PNJ)

Mir Singh v. Sajjan Singh

2002-02-13

M.L.SINGHAL

body2002
Judgment M.L.Singhal, J. 1. Sajjan Singh filed suit for permanent injunction restraining Mir Singh and others from raising any construction over passage marked ABCD and thus blocking it and hindering him and the other inhabitants of the village from using it as passage and also sought mandatory injunction directing the defendants to level the portion marked as EFGH in site plan, Exhibit P-1, attached to the plaint and demolish the foundations raised between point E to F and G to H. 2. It was alleged in the plaint that the passage CDGH joins the passage of new abadi at points GHAB. It was further alleged that the said passage is owned by the Gram Panchayat and the plaintiff is using the said passage for ingress and outgress and defendants wanted to block the passage by raising construction and they had dug the foundations at points E to F, and G to H. The passage shown by letters EFGH was a part of passage ABCD falling towards western side of the house of plaintiff and other residents of the village. 3. The defendants contested the suit of the plaintiff. It was denied that there is any passage as alleged by the plaintiff. The alleged passage has been shown in khasra No. 74. Khasra No. 74 is owned by the defendants. It was denied that the alleged passage is a thoroughfare. Defendants are raising the construction on Khasra No. 74 which belongs to them. It was denied that they are encroaching any part of the passage and are raising construction thereon. 4. On these pleadings of the parties, the following issues are framed by the learned trial Court:- "1. Whether the plaintiff is entitled to the relief of injunction qua the Rasta-Share-Asam as alleged? OPP 2. Whether the suit is not maintainable in its present form? OPD 3. Whether the plaintiff has got no locus-standi to file the suit? OPD 4. Whether the plaintiff has not come in the Court with clean hands and has suppressed the material facts? OPD 5. Whether the suit of the plaintiff is false and frivolous? OPD 6. Whether the defendants are entitled to special costs? OPD 7. Relief." 5. OPD 3. Whether the plaintiff has got no locus-standi to file the suit? OPD 4. Whether the plaintiff has not come in the Court with clean hands and has suppressed the material facts? OPD 5. Whether the suit of the plaintiff is false and frivolous? OPD 6. Whether the defendants are entitled to special costs? OPD 7. Relief." 5. Vide order dated January 29, 1997, Additional Civil Judge (Senior Division) Charkhi Dadri decreed the plaintiffs suit for permanent injunction restraining the defendants from raising any construction or encroaching upon passage EFGH forming part of passage ABCD as shown in the site plan, Exhibit P-3. Defendants were further directed to level the said passage by demolishing the foundations dug at points EF and GH in view of his finding that the site EFGH shown in site plan, Exhibit P-1, is part of passage ABCD and that the site EFGH was not part of khasra No. 74 belonging to the defendants and as such, defendants have no right, title or interest in site EFGH so as to be entitled to the raising of construction or encroaching any portion of site EFGH. 6. Defendants went in appeal which was dismissed by Additional District Judge, Bhiwani vide order dated August 22, 1997, Still not satisfied, defendants have come up in further appeal to this Court. 7. I have heard learned counsel for the parties and have gone through the record. 8. Plaintiff-Sajjan Singh (PW-2) stated that the disputed passage is 15-16 feet wide. This passage has been in existence since the village was founded. On this passage, the door of his house opens. He stated that the disputed passage EFGH is situated on the western side of his house. The passage emanates from the northern side and after some distance, it turns towards eastern side going towards the village. 9. PW-1 Raj Pal stated that he prepared site plan. Exhibit P-1 at the spot. The site plan, Exhibit P-1, accords with the spot position. Sajjan Singh-plaintiff denied this suggestion that the so called passage is part of khasra No. 74. Tokh Ram and Jai Singh PWs stated that this passage EFGH has been in existence since the village was founded. Both of them denied that the site EFGH which the plaintiff says is passage was part of khasra No. 74. Sajjan Singh-plaintiff denied this suggestion that the so called passage is part of khasra No. 74. Tokh Ram and Jai Singh PWs stated that this passage EFGH has been in existence since the village was founded. Both of them denied that the site EFGH which the plaintiff says is passage was part of khasra No. 74. Bhoop Singh defendant (DW-1), on the other hand, stated that the disputed site belongs to him and other defendants. Plaintiff has nothing to do with the disputed site. Towards the North of the disputed site, there is land of Raghbir etc. Towards the South is the land of Rajiv etc. Towards the East is the land of Lal Dora, which is in their possession since the time of their fore-fathers. Towards the West is the plot of the plaintiff. In this cross-examination, he stated that the southern passage joins the eastern passage. Om Parkash (DW-2) also stated that he has seen the disputed land which is in possession of Mir Singh defendant since before he attained the age of discretion. Earlier, it used to be their field. Thereafter, they raised bara. Towards its North, there is house of Raghbir. Towards the East is the land of plaintiff. Towards the West is the plot of the plaintiff. Plaintiff-Sajjan Singh has no concern with the disputed site. There is no passage in the disputed land. Plaintiffs case, thus, was that ABCD is a passage. Defendants are blocking it at points E to F and G to H. They had dug foundations with a view to raising constructions on it. If they are able to raise construction on EFGH, that would tantamount to obstructing the use of passage ABCD. Passage CDGH is situated inside abadi deh of village Mandi Piranu which join the passage GHAB of the new abadi. Defendants case, on the other hand, was that the site EFGH is part of Khasra No. 74 which belongs to them and there is no question of any encroachment of site EFGH by them as it is part of khasra No. 74 which belongs to them. Khasra No. 74 is "Gair Mumkin Makan" and Khasra No. 145 is "Gair Mumkin Plot" as shown in the jamabandi Exhibit D-1. 10. Khasra No. 74 belongs to the defendants and other co-sharers. Khasra No. 74 is "Gair Mumkin Makan" and Khasra No. 145 is "Gair Mumkin Plot" as shown in the jamabandi Exhibit D-1. 10. Khasra No. 74 belongs to the defendants and other co-sharers. The disputed passage has not been shown in Aks Masavi Exhibit D-3 as it is situated within the abadi deh of the village. Defendants did not produce any counter site plan to show that the site plan produced by the plaintiff was wrong although they, had pleaded in their written statement that they would produce correct site plan and that the site plan produced by the plaintiff was incorrect. The defendants did not get khasra No. 74 demarcated. Khasra No. 74 measures 3K-9M. demarcation would have shown whether the disputed site is part of khasra No. 74. Bhoop Singh (DW-1) admitted in cross-examination that the disputed passage does not fall in khasra No. 74. The disputed site lies on the eastern side just adjacent to plot No. 74. 11. It was submitted by the learned counsel for the appellant-defendants that it was the duty of the respondent-plaintiff to get the land demarcated and when the respondent-plaintiff did not get the land demarcated, inference should be drawn against him. It was submitted that the respondent-plaintiff did not produce any documentary evidence to prove the site in dispute was a passage and the oral statement of the plaintiff was not sufficient to prove that the dispute site was a passage particularly when the appellant-defendants had alleged that the site plan produced by the respondent-plaintiff was wrong. In the written statement, appellant-defendants did not deny the existence of passage in dispute. It was alleged by them that the passage had been encroached upon by the plaintiff whereas they themselves were raising construction on their own plot bearing khasra No. 74. Bhoop Singh-defendant admitted in his statement that in the eastern side of his plot, there is a passage. This statement of Bhoop Singh is sufficient to prove the existence of passage on the eastern side of the plot of the defendant. This disputed portion is in the eastern side of the plot of the defendants. During consolidation, passage was left abutting the plot in dispute comprising Khasra No. 74. Exhibit D-3 is "Masavi" of the village sowing the passage left during consolidation. After the passage, there is abadi of the village. This disputed portion is in the eastern side of the plot of the defendants. During consolidation, passage was left abutting the plot in dispute comprising Khasra No. 74. Exhibit D-3 is "Masavi" of the village sowing the passage left during consolidation. After the passage, there is abadi of the village. Since there was abadi, during consolidation, the entire passage as shown in site plan, Exhibit P-1, could not be shown. The defendant also admitted during cross-examination that there is another passage in the southern side of "Rasta" in dispute. There was sufficient evidence led by the respondent-plaintiff to prove the existence of passage. The passage left during consolidation joins the passage which is in the southern side. It, thus, lays upon the defendants to prove that the passage as shown by the plaintiff in the site plan was not passage rather the same was part of khasra No. 74. Learned counsel for the appellant-defendants submitted that the site plan, Exhibit P-1, should not have been given any weight as the same was prepared on the instructions of the respondent-plaintiff. 12. It was further submitted that the Gram Panchayat was not impleaded as party. It was further submitted that the suit filed by the plaintiff was barred under Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 . Suffice it to say, it is not a dispute between a private individual and Gram Panchayat where private individual is claiming property to be belonging to him vis-a-vis its claim that the property belongs to it being Shamlat Deh. The dispute is between two individuals where one party says that the disputed site is a passage and the other party is obstructing it by digging foundation and raising construction, while the other party says that the disputed site is not a passage, but it is part of his own property. In Aks Massavi, the passages which are approach to the fields are shown. The passages which exist in abadi den of the village are not shown. 13. Both the Courts below have found as fact that the disputed site is a thoroughfare which is meant to be used and not to be encroached upon. The finding of fact arrived at on the basis of evidence can not be set side in Regular Second Appeal by this Court. For the reasons given above, this Regular Second Appeal fails and is dismissed. The finding of fact arrived at on the basis of evidence can not be set side in Regular Second Appeal by this Court. For the reasons given above, this Regular Second Appeal fails and is dismissed. No order as to costs.