In this regular second appeal challenging the dismissal of a suit for mandatory injunction regarding alleged street obstruction, the Apex Court found no merit. The Court held that the plaintiffs witness admitted no gali surrounded the house and the provided site plan showed no obstruction, dismissing the appeal.
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.
RSA No.4302 of 2013 (O&M)
1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No.4302 of 2013 (O&M) Date of decision: 25.11.2014
Meenu
... Appellant
Vs.
Raj Pal and another
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:Mr. Kartik Gupta, Advocate for the appellant.
AMIT RAWAL J .
The present regular second appeal has been filed by the appellant-plaintiff whereby the suit for mandatory injunction against the defendants directing them to remove the obstruction made by them in the portion of street and restoration of the same to the actual position with consequential relief of permanent injunction restraining the defendants from raising any construction over the encroached portion of street, was dismissed by the trial Court and appeal filed against the judgment and decree also met with the same fate.
The trial Court while relying upon site plan Ex.PX, found that the site plan was not duly proved despite having been exhibited in the absence of the draftsman. Even the document Ex.P1 did not disclose the existence of a gali on three sides of the house of the plaintiff. Rather PW-1 Vinod Kumar in cross-examination had also admitted that his house was not surrounded by any gali. Not only this, even the site plan Ex.PX did not disclose the identity of the
SAVITA DEVI KADIAN 2014.12.03 14:44 I attest to the accuracy and authenticity of this document High Court Chandigarh
RSA No.4302 of 2013 (O&M)
2
property of the plaintiff. The trial Court, on examination of Ex.D1 sale deed executed in favour of the plaintiff found that it also did not disclose the existence of common gali on the northern-eastern and southern side of plaintiff's house. Accordingly the suit was dismissed.
Appellant assailed the findings of the trial Court by filing an appeal before the lower Appellate Court, on the contention that trial Court did not examine the site plan Ex.PX and also erred in not examining the contents of the sale deed Ex.D1. The lower Appellate Court after noticing the arguments of the appellant-plaintiff dismissed the appeal on the premise that the finding given by the trial Court is based on the appreciation of evidence on record particularly site plan Ex.PX. Rather sale deed Ex.D1 which was required to be proved on record by appellant-plaintiff has been proved and brought on record by the defendant-respondents. As per the sale deed Ex.D1, obstruction of gali, of which relief was sought to be removed by the plaintiff-appellant was not in existence. Hence the present regular second appeal.
Counsel appearing on behalf of the plaintiff-appellant submitted that both the Courts below committed perversity much less illegality in not examining the oral and documentary evidence brought on record, therefore, the present appeal involves substantial questions of law. Both the Courts below also did not appreciate the evidence of PW2-Rajiv Kumar and PW-3 Sanjay Kumar in correct perspective. It has been proved on record that the disputed gali has
SAVITA DEVI KADIAN 2014.12.03 14:44 I attest to the accuracy and authenticity of this document High Court Chandigarh
RSA No.4302 of 2013 (O&M)
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actually been blocked by the defendant/respondents.
During the hearing of the appeal, this Court called upon counsel for the plaintiff-appellant to pass on Ex.PX, the site plan relied upon by the plaintiff-appellant in support of the arguments. On perusal of it is evident that there is no obstruction. The findings rendered by the Courts below are based upon a finding of fact and law and the argument raised in the present appeal also do not involve any substantial questions to be answered by this Court. Plaintiff witness PW1- Vinod Kumar admitted that house was not surrounded by any gali other than western side. Since both the Courts below have concurrently rendered finding of fact that present appeal does not involve any question of law much less substantial question of law to be answered by this Court.
No other argument has been raised.
I do not find any merit and accordingly, the appeal is
dismissed.
(AMIT RAWAL) JUDGE
November 25, 2014 savita
SAVITA DEVI KADIAN 2014.12.03 14:44 I attest to the accuracy and authenticity of this document High Court Chandigarh
2 issues framed by the court
Whether the findings of fact by the courts below in dismissing the suit for mandatory injunction involved perversity or substantial questions of law.
Whether the trial court erred in not examining the site plan and sale deed evidence favorably to the appellant.
Meenu
Raj Pal
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
