This second appeal challenged the dismissal of a suit for permanent injunction regarding a drain. The High Court dismissed the appeal, holding that findings based on the Local Commissioner's report were not perverse and no substantial question of law arose.
The appeal was dismissed with costs.
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R.S.A. No. 4122 of 2003 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A. No. 4122 of 2003 (O&M) Date of decision: 16.1.2009
Kewal Krishan
....Appellant
Versus
Tirath Ram and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. Padam Jain, Advocate, for the appellant.
Mr. Vikas Bahl, Advocate, for the respondents.
VINOD K. SHARMA, J (ORAL)
Costs paid.
This regular second appeal is directed against the judgments and decrees dated 22.5.2001 and 22.7.2003 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant for injunction has been ordered to be dismissed.
The plaintiff/appellant filed a suit for permanent injunction on the ground that there exists the house of the plaintiff in the land comprising khasra No. 48//2/17 gair mumkin abadi. The house is said to have been constructed by the plaintiff/appellant about 17 years ago and he has been residing in the said house since then. The plaintiff claimed that there existed drain towards southern side of the house of plaintiff and the dirty water of the house and other water, including rainy water of
R.S.A. No. 4122 of 2003 (O&M)
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the house of the plaintiff, used to be discharged, and used to flow through the said drain and discharged in the chhappar of village which was shown as J in the site plan attached by the plaintiff.
It was also the case of the plaintiff that chhappar, drain and passage existed in khasra No. 49 (11 kanals 15 marlas) which existed for about last 42 years and were still in existence, when the suit for permanent injunction was filed. The plaintiff claimed that the defendants tried to block the passage by encroaching upon the same, as well as to close the drain.
The suit was contested on the plea that the property which the appellant claimed to be his was, in fact, plot of defendant/respondents where they have a house constructed. Plea was also taken that there was no drain on the southern side as the street was on the northern side.
Though the plaintiff/appellant has shown a street on the southern side of his house in the site plan, however, the learned trial Court appointed Local Commissioner who visited the spot and drew a site plan.
According to the site plan prepared by the Local Commissioner, there exists no street on the southern side, therefore, learned Courts below, on appreciation of evidence, have recorded concurrent finding of fact that there was no street or drain on the southern side where the plaintiff is said to be discharging dirty water or rainy water from his house, as claimed by him.
The learned counsel appearing on behalf of the appellant vehemently argued that the learned Courts below were wrong in basing their judgments only on the report of the Local Commissioner. It is also
R.S.A. No. 4122 of 2003 (O&M)
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the contention of the learned counsel for the appellant that the site map prepared by the Local Commissioner did not depict the correct picture, as the site plan produced by the plaintiff showed the exact position at the spot. The contention of the learned counsel is that the learned Courts below have committed an error in not relying on site plan of plaintiff/appellant.
The plea of the learned counsel for the appellant cannot be accepted. The findings recorded by the learned Courts below are based on the report of the Local Commissioner as well as other evidence led by the parties. The findings of fact have been recorded on appreciation of evidence neither perverse nor outcome of misreading of evidence.
This appeal, therefore, raises no substantial question of law for determination.
No merit.
Dismissed.
(Vinod K. Sharma) Judge
January 16, 2009 R.S.
1 issue framed by the court
Whether the findings of fact by lower courts based on the Local Commissioner's report regarding absence of drainage were perverse or erroneous.
Kewal Krishan
Tirath Ram
Vinod K. Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
