Dismissed

Gulshan Rai v. Harnam Kaur and Ors.

Punjab & Haryana HC11 Jan 2012RSA/1946/2011

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for permanent injunction regarding a land passage, the High Court dismissed the appeal. The Court upheld the lower courts' finding that the plaintiff failed to prove the existence of the passage due to vague evidence and lack of corroborating documentary or witness testimony.

What did the court decide?

The second appeal was dismissed; the judgment and decree of the first appellate Court were upheld.

Gulshan Rai Vs Harnam Kaur and Ors. — Partition | Punjab & Haryana HC (2012)

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RSA No.1946 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.1946 of 2011

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Date of Decision: January 11, 2012

Gulshan Rai

.......Appellant

Versus

Harnam Kaur and others

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.......Respondents

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CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

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Present: Mr.JS Cooner, Advocate for the appellant.

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TEJINDER SINGH DHINDSA, J.

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The plaintiff-appellant is in second appeal before this Court having remained unsuccessful in both the Courts below.

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Plaintiff -Gulshan Rai filed a suit for permanent injunction restraining the defendants from selling or purchasing the land described as Rasta/passage in front of 3 killas of land which, as per the plaintiff, was the only passage for him and his brothers, to have excess to the road situated near their land in the abadi of village Nahoni, Tehsil Barara, District Ambala. It was pleaded that the plaintiff was owner in possession of the 3 acres of land as described in the plaint. The plaintiff-appellant has further pleaded that towards Eastern side of the land there was abadi land after which there was a metalled road, and on the other side of such metalled road, there was again abadi land. The plaintiff-appellant along with his brothers was using the land in dispute as a passage and such passage had been carved out from the date of the consolidation proceedings. The

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RSA No.1946 of 2011

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plaintiff-appellant had come in knowledge that the respondent-defendants wanted to sell the passage and accordingly, the suit was instituted.

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Upon notice, the defendants filed a joint written statement raising preliminary objections regarding cause of action, maintainability as also non-joinder of necessary parties. On merits, it was denied that the plaintiff-appellant was the owner of the land as mentioned by him in the plaint. It was pleaded that between the land of the plaintiff and the metalled road, there was abadi land which was owned and possessed by the defendants as also other residents of village in the capacity of owners since the time immemorial. Such abadi land was attached to the other abadi land of the village prior to the construction of the metalled road and there was no written record of title and ownership of such abadi land. The definite plea raised by the defendant-respondents was to the effect that no passage as alleged by the plaintiff-appellant was in existence at the spot and that no such passage was left out during consolidation.

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The trial Court after having heard the parties and having gone through the records of the case dismissed the suit filed by the plaintiff. Being dissatisfied, the plaintiff-appellant filed a civil appeal in the Court of Additional District Judge, Ambala and vide impugned judgment and decree dated 24.12.2010, the first Appellate Court has dismissed the appeal. Accordingly, the plaintiff-appellant is in second appeal before this Court.

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I have heard Shri JS Cooner, learned counsel appearing for the appellant at length. 6. Learned counsel has vehemently argued that the Courts below have not appreciated the oral as well as documentary evidence produced by the plaintiff-appellant in the right perspective and thereby great prejudice

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RSA No.1946 of 2011

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has been caused to the plaintiff. Learned counsel contends that the findings of the Courts below are perverse.

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After having given my thoughtful consideration to the submissions made by the learned counsel appearing for the appellant, I find that the instant second appeal is wholly devoid of merit and must fail. The plaintiff-appellant while seeking a relief of permanent injunction pertaining to a Rasta/passage had placed reliance on site plan Exhibit P1. Both the Courts below have held such site plan to be totally vague. No dimensions/measurements, khasra number etc. were furnished in such site plan. No revenue record pertaining to the abadi of the village was produced in the evidence from which the existence of the passage could have been demonstrated. Still further, there was no evidence led on record to prove that such alleged passage had been carved out during consolidation. In such circumstances, the Courts below have held that mere filing of the vague site plan which was totally bereft of all details could not entitle the plaintiffappellant to the relief sought for. Even PW3-Roop Ram, who had prepared the site plan, Exhibit P1, has stated in his cross-examination that he had never visited the spot and had never even seen the alleged passage. Rather PW3-Roop Ram has admitted in the cross-examination that the site plan had been prepared upon the instructions of plaintiff-appellant. PW4-Anil Kumar, Halqa Patwari was examined and he also in his cross-examination stated that the metalled road which had been constructed leading from village Nahoni to Saha, there was abadi abutting both sides of the road. The Halqa Patwari did not utter any word about the existence of the passage as was the claim of the plaintiff-appellant.

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The conclusions of the Courts below in denying the relief of

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RSA No.1946 of 2011

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permanent injunction to the plaintiff-appellant are based on due appreciation of the evidence placed on record and on logical reasoning. I find no perversity in the findings of the Courts below. The High Court in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure would refrain from interfering in the findings and the conclusions drawn by the first Appellate Court where the same are based on sound reasoning and upon due appreciation of evidence.

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No question of law, much less substantial question of law, arises in the present second appeal.

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The present appeal being devoid of any merit is, accordingly, dismissed.

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Appeal dismissed.

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( TEJINDER SINGH DHINDSA ) JANUARY 11, 2012 JUDGE

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SRM

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Note: Whether to be referred to Reporter? Yes/No

Gulshan Rai v. Harnam Kaur and Ors.

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Gulshan Rai v. Harnam Kaur and Ors.

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