Dismissed

Gram Panchayat, Village Hoshiar Nagar v. Jagir Singh and Others

Punjab & Haryana HC24 Feb 2014RSA/1093/2012

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by a Gram Panchayat. The court held that no jurisdictional error or substantial question of law existed in the lower appellate court's decision, which had correctly restrained the respondents from obstructing a passage proved to be the only ingress/egress to the plaintiff's property.

What did the court decide?

Instant second appeal dismissed with no order as to costs.

Gram Panchayat, Village Hoshiar Nagar Vs Jagir… — Property and Title | Punjab & Haryana HC (2014)

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RSA No. 1093 of 2012 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH

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RSA No. 1093 of 2012 (O&M) Date of Decision: 24.2.2014

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Gram Panchayat, Village Hoshiar Nagar, Tehsil and Distt., Amritsar

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.....Appellant

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Versus

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Jagir Singh and others

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.....Respondent

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Vivek Salathia, Advocate for the appellant.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J.

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Feeling aggrieved against the judgment of reversal, passed by the learned District Judge, Amritsar, whereby the judgment and decree passed by the learned trial court, dismissing the suit of the plaintiff-respondent, were set aside allowing the first appeal of the plaintiff, defendant-appellant has approached this Court by way of instant appeal.

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In order to avoid repetition and for the sake of brevity, facts of the case as recorded by the learned District Judge, Amritsar in para 2 and 3 of the impugned judgment, read as under:-

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“Briefly stated, the facts of the case are the plaintiff, Jagir Singh, a resident of village,

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 1093 of 2012 (O&M)

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Hoshiar Nagar, Tehsil and District Amritsar, had filed a suit for grant of permanent injunctions against Gram Panchayat, Village Hoshiar Nagar, Tehsil and District Amritsar, through its Sarpanch Shri Kulwant Singh; Shri Arjan Singh son of Shri Gian Singh; Shri Desa Singh son of Shri Fauja Singh, and Smt. Gurmit Kaur wife of Shri Surinder Deep Singh, on the averments that he owns and possesses agricultural land in village Hoshiar Nagar, Tehsil and District Amritsar, and has constructed a residential Kothi therein, shown as green in the site plan attached; that there is a passage reflected in red colour which leads from a pucca road to kothi of plaintiff and his agricultural land. This is the only ingress and outgress of the plaintiff and there is alternative passage. This passage is in existence since long and his easementary rights had occurred in his favour. The plaintiff has been using this passage, however, the defendants without any right threatened to obstruct the plaintiff from doing so, not listening to his request to desist from doing so, giving rise to a cause of action to the plaintiff to bring the suit .

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On notice, defendants appeared. Defendants No.1 and 2 filed a joint written statement whereas defendants No.3 and 4 came up with a separate written statement filed by them jointly. In the written statement on behalf of former, they have taken preliminary objections that the suit is not maintainable in the present form, since it has not been signed and verified by a competent person; that plaintiff has not approached this court with clean hands as he has suppressed the material facts; that suit is a counter blast to a suit filed by

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RSA No. 1093 of 2012 (O&M)

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one Gurjit Singh son of Arjan Singh, defendant No.2 against Jagir Singh, plaintiff, on 23.7.2005 which is pending in the court of Amritsar, and where the injunction application has been decided by directing the parties to maintain status quo regarding possession of the suit property; that site plan attached with the plaint is factually wrong; that the suit is not properly valued for the purposes of court fee and jurisdiction; that the suit land has already been auctioned by Gram Panchayat in favour of Gurjit Singh vide auction dated 15.6.2005 which was confirmed by DDPO. Amritsar, vide his order dated 1.8.2005 and possession of the same was handed over to Gurjit Singh son of Arjan Singh defendant No.2. On merits, material assertions in the plaint are denied. It is controverted that any passage as alleged by the plaintiff in the plan exist at the spot. Denying the remaining allegations, these defendants prayed for dismissal of the suit.”

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On completion of pleadings of the parties, learned trial court framed the following issues:-

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“1. Whether plaintiff is entitled for permanent injunction restraining the defendants from demolishing and dismantling the passage as shown in red colour in the site plan?OPP.

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2. Whether the plaintiff has not approached the court with clean hands and suppressed material facts from the court?OPD

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3. Whether the suit is not maintainable?OPD

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4. Relief.”

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RSA No. 1093 of 2012 (O&M)

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With a view to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has failed to prove his case. Consequently, the suit was dismissed vide judgment and decree dated 23.10.2010. Feeling aggrieved, plaintiff filed his first appeal, which came to be allowed by the learned District Judge, Amritsar. Hence this appeal at the instance of the defendant-Gram Panchayat.

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Learned counsel for the appellant submits that learned trial court rightly dismissed the suit of the plaintiff, whereas learned lower appellate court failed to appreciate the true facts of the case as well as evidence available on record. He further submits that learned District Judge misdirected himself while not appreciating the evidence available on record in the correct perspective, because of which the impugned judgment and decree were not sustainable in law. He prays for setting aside the impugned judgment and decree, by allowing the present appeal.

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Having heard the learned counsel for the appellant at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the case, present one is not a fit case for exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 1093 of 2012 (O&M)

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Plaintiff claims easementary rights saying that passage in question was the only passage for ingress and outgress to his residential house. With a view to prove the existence of the passage, plaintiff-respondent examined PW-1-Rohit Gupta, Draftsman, who went to the spot and prepared the site plan of the passage as Ex.P1. He also proved on record photographs of the passage. This witness also successfully stood the test of cross-examination. Plaintiff also examined PW2-Gurdev Singh, PW4-Swaraj Singh and PW5-Kewal Singh to prove the existence of the passage.

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Plaintiff himself appeared as PW3. On the other hand, defendants examined only one witness DW1-Arjan Singh, but he did not come forward for cross-examination. Having said that, this Court feels no hesitation to conclude that there was voluminous and sufficient evidence on record in favour of the plaintiff and the learned District Judge rightly appreciated the same in the correct perspective, while allowing the appeal and decreeing his suit, restraining the appellant-defendant Gram Panchayat from destroying and blocking the passage in question illegally and forcibly, except in due course of law.

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Before arriving at a judicious conclusion, learned District Judge recorded cogent findings, in para 12 and 13 of the impugned judgment and the same read as under:-

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12. “In the instant case, the plaintiff has specifically pleaded that there is a passage leading to his house/kothi constructed in his agricultural land which he has been using continuously and this is

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RSA No. 1093 of 2012 (O&M)

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the only passage available to him for ingress and outgress, and defendants have been trying to obstruct him fro doing so. Defendants No.1 and 2 denied the existence of said passage, however, the defendants No.3 and 4 admitted its existence. Defendant No.3 is the member of village Gram Panchayat. To prove the existence of passage, the plaintiff has led oral as well as documentary evidence. Oral evidence comprising of statement of PW1 Rohit Gupta, Draftsman, who in his affidavit stated that he had gone to the spot, prepared site plan of the passage which he proved as Ex.P1. He contended that he had taken snaps of the passage also; that he has lost negatives but he proved the photographs mark A to mark D. He was crossexamined on behalf of contesting defendants, but his credibility could not be shaken on any material point. It may be mentioned here that the defendants have not produced any counter site plan so as to challenge the correctness of the site plan Ex.P1 got prepared by plaintiff. PW2 Gurdev Singh, PW3 Jagir Singh and PW5 Kewal Singh have categorically deposed regarding the existence of the passage stating that this is the only passage available to the house/kothi of plaintiff. PW4 Swaraj Singh has also proved photographs taken by him

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 1093 of 2012 (O&M)

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showing existence of the passage. The contesting defendants have not led any worthwhile evidence in rebuttal although DW1/A in which he denied existence of the passage, and his cross-examination was deferred, however, he did not appear in the court to face cross-examination. In that way, his statement is incomplete and cannot be looked into. Learned counsel for the contesting defendants closed their evidence after tendering certain documents, i.e. Jamabandi for the year 1998-99 Ex.D1 and certified copy of resolution dated 20-092009 Ex.D2. Learned counsel for the plaintiff drew my attention to the copy of judgment passed by the court of Smt. Daljit Kaur, the then Civil Judge (Junior Division), Amritsar, in RBT civil suit No. 195 of 2507-2005/2007, decided on 08-03-2008. In para No.10 page No.7, there is reference to the stand taken by the present plaintiff, who was defendant there, regarding existence of passage and on page No.10 of the judgment while referring the crossexamination of plaintiff Gurjit Singh son of Arjan Singh (Arjan Singh is defendant No.2 in the present case), the said plaintiff had admitted that passage leading to farm house (behak) of others was there and khasra No.62/3 out of suit land had been in possession of defendants for the last 7/8 years. In

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 1093 of 2012 (O&M)

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that way existence of passage was admitted in the said suit. Certified copy of statement of Gurjit Singh recorded in the said suit Ex.P3/2 has been there wherein he had conceded existence of the passage. Ex.P33 is certified copy of statement of Arjan Singh, present defendant No.2, wherein also he had conceded the existence of passage. It being so, the plaintiff had successfully made out a case for grant of permanent injunction restraining the defendants from demolishing and dismantling the passage shown in red colour in the site plan. Although in the revenue record the existence of the passage is not shown to be there, but then from the evidence adduced by the plaintiff, existence of such passage at the spot is proved to be there. The defendants No.1 and 2 cannot possibly obstruct the plaintiff from using that passage by adopting illegal means or use of force, although if so aggrieved, they can take recourse to law so as to get it closed by approaching the authorities under Punjab Village common Lands (Regulations) Act, or the civil court, if so advised. The trial court wrongly decided this issue against the plaintiff in favour of defendants. Findings of the trial court on this issue is reversed and issue is decided in favour of the plaintiff and against defendants.

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RSA No. 1093 of 2012 (O&M)

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13. As regards issues No.2 and 3, both these issues have been decided against the defendants, although without giving much reasoning. However, a perusal of the file goes to show that defendants have neither pleaded nor led evidence to show that plaintiff has not approached the court with clean hands or has suppressed the material facts from the court which might have debarred him from getting discretionary equitable relief of permanent injunction and suit as framed is maintainable under Section 38 of the Specific Relief Act, and no fault can be found therewith.”

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A bare perusal of the abovesaid findings recorded by the learned District Judge would show that he has committed no error of law, while passing the impugned judgment. When a pointed question was put to the learned counsel for the appellant, whether there was any alternate passage available to the house of the plaintiffrespondent, he had no answer. In this view of the matter, it is unhesitatingly held that plaintiff has duly proved his case and the same was rightly decreed by the learned District Judge by allowing his first appeal, because of which the impugned judgment deserves to be upheld.

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During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case in the impugned judgment passed by the learned first appellate court. He also failed to put into service Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 1093 of 2012 (O&M)

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any substantive argument, so as to convince this Court to take a different view than the one taken by the learned lower appellate court. Further, no question of law muchless substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court in execrise of its jurisdiction under Section 100 CPC.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Resultantly, the instant second appeal stands dismissed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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24.2.2014 AK Sharma

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 1093 of 2012 (O&M)

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

Gram Panchayat, Village Hoshiar Nagar v. Jagir Singh and Others

Case brief

What is this about?

What did the court decide?

Gram Panchayat, Village Hoshiar Nagar v. Jagir Singh and Others

Case brief

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What did the court decide?

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