Shan Kar Dass vs Chander Kala
2024 Latest Caselaw 18724 P&H

Punjab-Haryana High Court

Shan Kar Dass vs Chander Kala on 22 October, 2024

                                        Neutral Citation No:=2024:PHHC:138258
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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.
                    ****
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

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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

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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

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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

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