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2012 DIGILAW 1444 (PNJ)

Jasmer Singh v. Ved Parkash

2012-10-10

L.N.MITTAL

body2012
JUDGMENT : - L. N.MITTAL, J. (Oral) : Defendants have filed this second appeal, having lost in both the courts below. Suit was filed by respondent-plaintiff Ved Parkash against defendants-appellants. The dispute relates to the site situated towards North of bara of the plaintiff and other co-sharers. The plaintiff has alleged that the said site is a thoroughfare/common chowk running from East to West. Defendants have no right, title or interest to block the said passage, which is front side of bara of plaintiff and other co-sharers comprised of Rect. No. 358 measuring 01 kanal 01 marla. Plaintiff accordingly sought permanent injunction restraining the defendants from blocking the said passage and causing obstruction in access of the plaintiff from northern side of his bara by raising construction on the disputed site. Mandatory injunction directing the defendants to remove their dung cakes and mangers etc. from the said site was also claimed. Defendants denied the plaint averments. It was denied that dispute site is thoroughfare or chowk. It was pleaded that the disputed site is bara of defendants and thereafter there is brick paved street on the northern side of the disputed site. The defendants are owners in possession of the disputed site. Various other pleas were also raised. Learned trial court partly decreed the plaintiff's suit thereby restraining the defendants from blocking the frontage of plaintiff's bara from northern side and from causing any obstruction in smooth access to plaintiff's bara/house from northern side by raising construction over the dispute strip of land shown in red colour in site plan of the plaintiff, except in due course of law. First appeal preferred by the defendants has been dismissed by the lower appellate court. Feeling aggrieved, defendants have filed this second appeal. I have heard counsel for the parties and perused the case file including file of the trial court with assistance of counsel for the parties. Counsel for the appellants contended that there is passage for bara of the plaintiff from eastern and western sides and the disputed site lying on northern side of the bara is not a passage. It was argued that there is no document on record to depict that the disputed site on northern side of plaintiff's bara is thoroughfare or chowk, as alleged by the plaintiff. It was argued that there is no document on record to depict that the disputed site on northern side of plaintiff's bara is thoroughfare or chowk, as alleged by the plaintiff. It was also argued that petition was filed under Section 7 (2) of the Punjab Village Common Land (Regulation) Act, 1961 (in short – the Act) by Sewa Ram against the defendants (including their predecessors) relating to the same site and the same was dismissed by the Assistant Collector as there was no evidence to prove the disputed site to be village common property. It was also argued that in an earlier Civil Suit instituted by plaintiff and others against some of the defendants and their predecessors, the disputed site was not alleged to be thoroughfare or chowk. On the other hand, counsel for respondent-plaintiff contended that Mehar Singh (defendant no.6), while appearing as DW-1, has admitted the disputed site to be thoroughfare. Reference was also made to site plan Ex.D-4 filed with petition under Section 7 (2) of the Act, wherein also, the disputed site was depicted to be thoroughfare. It was also argued that in the previous Civil Suit, decreed vide judgment and decree dated 22.11.1979 (Ex.D-5 and Ex.D-6), the disputed site was held to be thoroughfare. I have carefully considered the rival contentions. All the contentions raised by counsel for the plaintiff-respondent are factually incorrect. Mehar Singh (defendant no.6) as DW-1 has nowhere admitted the disputed site to be thoroughfare or chowk. He has rather asserted even in cross-examination that the disputed site, lying on North of bara of plaintiff, his brothers and cousins – Ram Niwas etc., is owned and possessed by the defendants being their bara. Similarly, in Civil Suit, decided vide judgment and decree (Exs.D-5 and D-6), the disputed site was not held to be thoroughfare or chowk. In fact, in that suit, the dispute related to eastern and western passages, as depicted in site plan Ex.D-2 produced in that suit. The said suit did not pertain to the disputed site, lying on North of bara of plaintiff and Ram Niwas etc. Similarly, in petition under Section 7(2) of the Act, although the disputed site was alleged to be thoroughfare, but it was not so proved and the said petition was dismissed vide order dated 31.03.2001 (Ex.D-7). The said suit did not pertain to the disputed site, lying on North of bara of plaintiff and Ram Niwas etc. Similarly, in petition under Section 7(2) of the Act, although the disputed site was alleged to be thoroughfare, but it was not so proved and the said petition was dismissed vide order dated 31.03.2001 (Ex.D-7). On the other hand, in site plan Ex.D-2 annexed by plaintiff and others with their previous suit (decided vide judgment and decree dated Ex.D-5 and Ex.D-6), the disputed site was depicted to be of Ram Singh – (uncle of the plaintiff) son of Chandan Singh. Thus, in that case, the disputed site was not alleged to be thoroughfare or chowk, as now alleged in the instant lis. The plaintiff's stand in the instant lis is, therefore, falsified by his own version in the previous suit depicting the disputed site to be private property and not thoroughfare or chowk. It is undisputed that there are passages towards eastern and western sides of the plaintiff's bara. There is no document on record to depict that the disputed site on North of plaintiff's bara is thoroughfare or chowk. On the contrary, previous litigation also goes against the version of the plaintiff. For the reasons aforesaid, I find that the disputed site is not proved to be thoroughfare or chowk, although the defendants may also have failed to prove it to be owned by them, whereas their possession thereon is admitted. The question regarding title of the disputed site shall remain open. Since plaintiff has failed to prove the disputed site to be thoroughfare or chowk, the plaintiff is not entitled to injunction prayed for and as granted by the courts below. Resultantly, following substantial question of law arises for adjudication in this second appeal :- “Whether finding of the courts below that the disputed site is a thoroughfare is perverse and illegal and is based on misreading and misappreciation of evidence ?” For the reasons recorded herein before, the aforesaid substantial question of law is answered in the affirmative i.e. in favour of defendants/ appellants and against the plaintiff-respondent. Resultantly, the instant second appeal is allowed. Judgments and decrees of both the courts below are set aside. Suit filed by the plaintiff stands dismissed. The parties shall suffer their respective costs throughout.