Appealed against decree in second appeal regarding permanent injunction over a passage. Held that sale deed executed by appellant proves passage existence. Appeal dismissed.
Appeal dismissed; no substantive relief granted in this order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R. S. A. No. 717 of 2009
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 717 of 2009
Date of Decision : August 16, 2010
Vinod Kumar
.... Appellant
Vs.
Dev Dutt and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
Present : Mr. Arun Jain, Senior Advocate with Mr. Adarsh Jain, Advocate for the appellant.
Mr. R. S. Randhawa, Advocate for respondents no.1 and 2.
None for respondent no. 3.
L. N. MITTAL, J. (Oral) :
Defendant no.1 Vinod Kumar, who was successful in trial court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal.
Respondents no.1 and 2 – plaintiffs filed suit against appellant and respondent no.3 Gajender Singh (defendant no.2) alleging that the plaintiffs purchased property depicted by letters ABCD in the site plan from
R. S. A. No. 717 of 2009
2
Raj Kumar and Jyoti Parkash through defendant no.1 – appellant Vinod Kumar as Attorney, vide registered sale deed dated 26.07.1996 and raised construction of a house and other building therein. There is 15 feet wide rasta (passage) shown in red colour towards east of the said property. The plaintiffs are using the said passage. However, defendants were bent upon to cause obstruction in the user and enjoyment of the said passage by the plaintiffs. Accordingly, the plaintiffs sought permanent injunction restraining the defendants from causing obstruction in the said passage.
Defendant no.1 denied the plaint allegations in toto. Defendant no.1even denied having sold property to the plaintiffs vide sale deed dated 26.07.1996. Defendant no.1 also denied the existence of building of the plaintiffs in the said property. Defendant no.1 also denied the existence of disputed passage. Defendant no.2 also broadly took the same stand as that of defendant no.1. Defendant no.2 also pleaded that he has purchased some property vide General Power of Attorney dated 02.05.1997 and is owner in possession thereof and plaintiffs have no concern therewith.
Learned Civil Judge (Junior Division), Palwal, vide judgment and decree dated 22.02.2007, dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Faridabad vide judgment and decree dated 25.10.2008 and thereby, plaintiffs' suit has been decreed relating to passage measuring 15' x 68' lying towards east of plot purchased by the plaintiffs vide sale deed
R. S. A. No. 717 of 2009
3
dated 26.07.1996 (Ex.PW-1/A). Feeling aggrieved, defendant no.1 has preferred the instant second appeal.
I have heard learned counsel for the parties and perused the
case file.
Learned counsel for the appellant vehemently contended that mere depicting of passage in eastern boundary of the plot sold, vide sale deed dated 26.07.1996 (Ex.PW-1/A), would not mean that the said passage is in existence at the spot. Reference in this regard was also made to report of the Local Commissioner. Learned counsel for the appellant also contended that in subsequent sale deed dated dated 25.10.1996 (Ex.P-A), relating to property situated adjacent to the property sold vide sale deed dated 26.07.1996 (Ex.PW-1/A), no such passage was depicted to be in existence.
On the other hand, learned counsel for the plaintiffsrespondents no.1 and 2 contended that sale deed dated 26.07.1996 (Ex.PW1/A) was executed by defendant no.1 – appellant himself as Attorney of Raj Kumar and Jyoti Parkash and in the said sale deed dated 26.07.1996 (Ex.PW-1/A), it has been clearly depicted that eastern side of the property sold was 68' in length and towards east thereof, there was 15' wide passage and consequently, defendant no.1 has no right to dispute the existence of the said passage.
I have carefully considered the rival contentions. Defendant
R. S. A. No. 717 of 2009
4
no.1, in the written statement, even denied having executed sale deed dated 26.07.1996 (Ex.PW-1/A). Defendant no.1 even denied the plaintiffs to be owners of the property adjoining the disputed passage. However, it has been proved and is not even disputed before me by counsel for the appellant that the appellant himself, as Attorney of Raj Kumar and Jyoti Parkash, had executed sale deed dated 26.07.1996 (Ex.PW-1/A). It is thus manifest that defendant no.1 – appellant did not approach the Court with clean hands in his written statement and falsely denied everything pleaded by the plaintiffs.
In addition to the aforesaid, perusal of sale deed dated 26.07.1996 (Ex.PW-1/A) clearly proves that the disputed passage 15' in width is in existence. It has been categorically recited in the sale deed that eastern boundary of the plot sold is 68' in length and there is 15' wide passage towards east thereof. This sale deed executed by the appellant himself proves the existence of the said passage and it does not lie in the mouth of the appellant to contend that no such passage is in existence. The contention on behalf of the appellant that boundaries are meant to define and specify the property being sold does not help the appellant because mentioning of the boundary on eastern side as passage clearly depicts that the said passage was in existence. It may be added that according to the said boundaries, there was in fact no other passage for the property sold except the disputed eastern passage. Subsequently, of course, the plaintiffs purchased some property towards south of this property, which extends up
R. S. A. No. 717 of 2009
5
to Rasulpur road in the south. However, when property was purchased vide sale deed dated 26.07.1996 (Ex.PW-1/A), there was no other passage for the said property except the disputed passage. In this view of the matter also, it is fully established that the disputed passage is in existence at the spot. Recital of passage in the boundaries of the property sold always mean that the passage is meant for user by the purchaser of the property. In the instant case, the disputed passage was depicted in eastern boundary of the property sold vide sale deed dated 26.07.1996 (Ex.PW-1/A) and so, existence of the said passage cannot be disputed by the appellant, who executed the said sale deed. It is correct that in subsequent sale deed dated 25.10.1996 (Ex.P-A), passage has not been depicted towards east of the property sold. However, this sale deed pertained to different property adjoining the property sold vide earlier sale deed dated 26.07.1996 (Ex.PW1/A). Consequently, boundaries mentioned in the subsequent sale deed have no bearing on the existence of the disputed passage adjoining towards east of the property, which was sold vide earlier sale deed dated 26.07.1996 (Ex.PW-1/A).
Lower appellate court has decreed the plaintiffs' suit only regarding the passage depicted in sale deed dated 26.07.1996 (Ex.PW-1/A) and not regarding the site adjoining the property purchased vide sale deed dated 25.10.1996 (Ex.P-A) by the plaintiffs. Report of the Local Commissioner also does not disapprove the existence of the disputed
R. S. A. No. 717 of 2009
6
passage. It simply mentions that there were some pits and some building material lying at the site. That would not mean that the disputed passage is not in existence.
For the reasons aforesaid, I find no illegality in the impugned judgment of the lower appellate court. Existence of the disputed passage is fully proved particularly by the sale deed dated 26.07.1996 (Ex.PW-1/A) executed by the appellant himself and therefore, the appellant is even estopped from disputing or denying the existence of passage in question.
No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed.
August 16, 2010
( L. N. MITTAL ) JUDGE
monika
3 issues framed by the court
Whether the existence of the disputed passage is proved by the sale deed executed by the appellant himself?
Whether the appellant can dispute the existence of the passage when he executed the sale deed depicting it?
Whether the appeal needs determination as no substantial question of law arises?
Vinod Kumar
Dev Dutt
L. N. MITTAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
