Punjab-Haryana High Court
Shan Kar Dass vs Chander Kala on 22 October, 2024
Neutral Citation No:=2024:PHHC:138258
1
RSA No.1289 of 2024 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
184
RSA No.1289 of 2024 (O&M)
Date of Decision: 22.10.2024
SHANKAR DASS ......
......Appellant
Vs
CHANDER KALA ....Respondent
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJ
MANUJA
Present: Mr. M.L. Saggar, Senior Advocate with
Ms. Armaan Saggar, Advocate
for the appellant.
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HARKESH MANUJA, J. (Oral)
[1]. By way of present appeal, challenge has been laid to the judgments judgment and decree dated 19.04.2022 and 09.02.2024 passed by the Courts below, whereby suit for permanent injunction filed at the instance of respondent respondent-plaintiff with a prayer for restraining the appellant-defendant appellant defendant from encroaching and amalgamating portion of street at Point A and B shown in the site pl plan an attached along with the plaint, from opening any door or window by breaking open the pacca wall in the said street has been decreed.
decreed [2]. Briefly stating, in the present case, respondent-plaintiff plaintiff filed a suit for permanent injunction while claiming herself to be the owner of residential house abutting the property owned-managed owned by the appellant appellant-defendant, consisting of Dera Baba Singh Wala, Wala situated at Railway Line Kotkapura. It was pleaded at the instance of respondent-plaintiff respondent that appellant appellant-defendant defendant forcibly intended/ threatened to open a door by breaking the wall at Point A and B as shown in the site plan attached along with the plaint. It was further pleaded that the appellant-
appellant defendant was having separate passage from other side which was shown in yellow 1 of 4 ::: Downloaded on - 11-11-2024 05:15:06 ::: Neutral Citation No:=2024:PHHC:138258 2 RSA No.1289 of 2024 (O&M) colour in the site plan attached along with the plaint and, thus, he be restrained from encroaching upon and amalgamating the portion of street in question. [3]. Upon notice, appellant/defendant denied the facts stated in the pl plaint aint while submitting that the appellant/defendant only intended to open a door towards the existing public street, street facing house of the respondent/plaintiff. It was also pleaded that the said street was not a private street of any individual and, thus, the appellant was having all rights to have a passage through the same. [4]. In terms of pleadings of the parties, fo following llowing issues were framed by the Trial Court:--
"1. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable? OPD
3. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD
4. Relief."
[5]. Vide judgment and decree dated 19.04.2022 passed by the learned Civil Judge (Jr. r. Divn.) Faridkot,, the suit filed at the instance of the respondent-
respondent plaintiff was decreed while restraining the appellant appellant-defendant defendant from encroaching and amalgamating portion of the street at point A and B shown in the site plan (Ex.P-1)
1) and also restraining him from opening any door or window therein. Aggrieved thereof, first appeal was filed at the instance of the appellant appellant-defendant defendant, however, the same came to be dismissed vide judgment and decree dated 09.02.2024 by the learned District Judge, Faridkot Faridkot.
[6]. Impugning the aforementioned afore judgments and decrees, learned Senior counsel representing enting the appellant submits that in the plaint it was nowhere pleaded that the street in question was a private street and, thus, the appellant-
appellant defendant was having every right to make an opening therein by removing the 2 of 4 ::: Downloaded on - 11-11-2024 05:15:07 ::: Neutral Citation No:=2024:PHHC:138258 3 RSA No.1289 of 2024 (O&M) portion of wall at points A and B. In support, he relies upon cross cross-examination examination of respondent-plaintiff, plaintiff, who while appearing as PW PW-1 1 deposed that the street in question was being used by general public and many other residents were having their houses abutting the same and it was even ppaved by the Municipal nicipal Committee.
He thus, submits that the findings recorded by the Courts below were perverse and, therefore, liable to be set aside.
[7]. I have heard learned Senior counsel representing the appellant and gone through the paper book. I am am unable to find substance in the submissions made on behalf of the appellant.
[8]. Admit Admittedly, the appellant/defendant is having separate passage for his Dera as well as the residential portion.. The property of the respondent/plaintiff is situated on the back side of Dera and the residential building building; having a wall in between. From the material available on record, it can be traced out that one street leads to the houses of plaintiff-respondent plaintiff respondent and others. House of respondent exists on one corner and the street ends there with a wall. Undisputedly, on the other side of the wall, Dera owns and possesses its property. The Dera through appellant-
appellant defendant now intends to make an opening at Points A and B (as per site plan Ex.P1) in the wall thereby connecting connecting its property to the street abutting the house of respondent-plaintiff.
plaintiff. No documentary evidence in the shape of municipal records at all has been summoned-produced summoned produced or proved to establish the said street to be a public street. Any opening in the street in question by appellant is definitely going to cause un-necessary un necessary hindrance for the residents as the total width of the street is merely ten feet.
[9]. In view of the discussion made hereinabove, there being no misreading of pleadings or any evidence available available on record record, on the part of Courts 3 of 4 ::: Downloaded on - 11-11-2024 05:15:07 ::: Neutral Citation No:=2024:PHHC:138258 4 RSA No.1289 of 2024 (O&M) below,, neither any material evidence having lost sight off, the present appeal being devoid of merits is hereby dismissed, upholding the concurrent findings of facts recorded under the impugned judgment and decrees decrees.
[10]. All pending application(s), application , if any, shall also stand disposed of.
(HARKESH MANUJA) October 22,, 2024 202 JUDGE Atik Whether speaking/reasoned Yes/No Whether reportable Yes/No 4 of 4 ::: Downloaded on - 11-11-2024 05:15:07 :::