Appeal dismissed. Appellant failed to prove easement rights; ventilator obstruction resulted from respondent's construction on his own property. Courts below correctly held both parties hold distinct possession with no encroachment.
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Date of decision: 10th November, 2014
Joga Singh
� Appellant
Versus
Baldev Singh @ Baldev Chand
� Respondent
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Present: Mr. Krishan S. Dadwal, Advocate for the appellant.
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This is third attempt of the unsuccessful plaintiff,appellant Joga Singh in seeking a decree for permanent injunction restraining the defendant,respondent from closing ventilators, detailed in the site plan annexed with the plaint, of his house built on Khasra No.3206/1722(1,7) in the area of village Nikku Nangal, Tehsil Anandpur Sahib, District Ropar.
Briefly, the grouse of the plaintiff is that on the western side of his house near the wall he has left one Karam land vacant and installed six ventilators which are depicted as mark V1 to V6 to enable him to have fresh air and light. Feeling aggrieved over the act and conduct of the defendant has sought this decree of restraint. Defendant has taken the plea denying that one Karam land was left on
the western side by the plaintiff and rather claimed that he is owner
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and in possession of the said vacant portion claiming that at the time of construction plaintiff had undertaken to close the ventilators at appropriate time which he did not do so and that at no point of time defendant ever obstructed the free flow of light and air to the premises of the plaintiff.
The trial Court framed the following issues:
Plaintiff examined himself as PW,1 by way of his affidavit Ex.PW1/A and tendered documents site plan Ex.P1, Jamabandi for the year 2002,03 Ex.P2, Jamabandi for the year 1997,98 Ex.P3, Khasra Girdawari from Kharif 1989 to Rabi 1993 Ex.P4 and photocopies of the documents by way of order dated 18.05.1990 as Mark Y, and examined PW,2 Bachittar Singh to corroborate his stand.
However, the defendant examined himself as DW,1 by way of his affidavit DW1/A and examined DW,2 Surinder Singh who has tried to lend credence to the case of the defendant and after tendering Jamabandi for the year 2002,03 as Ex.D1 closed his evidence.
The trial Court of learned Civil Judge (Junior Division), Anandpur Sahib through judgment and decree dated 19.03.2013 and the first appellate Court of learned Additional District Judge, Ropar through its judgment and decree dated 06.08.2013 passed the
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consistent findings dismissing the suit and the appeal of the plaintiff, appellant and that is how the plaintiff is before this Court in this appeal.
After hearing at length Mr. Krishan Singh Dadwal, Advocate for the appellant. Since it is the plaintiff who has knocked at the doors of the Court, thus a heavy onus lay upon him to have proved and established his case by preponderance of probabilities. It is not the case of the plaintiff how or in what manner the defendant is trying to cause injury to the plaintiff and what is sought to be the purpose of the suit apparently appears to be from prohibiting the defendant from carrying on the construction on his portion of the land. Rather in his cross,examination the plaintiff as PW,1 accepted that he is not the owner of the property in question which is owned by deceased Rakha Singh and accepted that the house of the defendant is on the back of his house. It is further admitted by the plaintiff that the defendant has raised tin roof of his house after constructing new premises and that the entire portion on the western side of his house is covered by the house of the defendant and rather accepts that the six ventilators of his house have been affected, shows that it was on account of own construction of the defendant in his property which is the subject matter of grouse to the plaintiff and his other witness PW,2 Bachittar Singh and also supports the fact that the plaintiff is not owner of the property where he has claimed to have built a house and rather accepts that both the parties are in possession of their respective properties.
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It has been vehemently submitted on behalf of the appellant that easementry rights of the plaintiff have been adversely affected, nowhere reflects either in the pleadings or in the evidence of the plaintiff and what is reflected from the deposition of Baldev Singh defendant as DW1 and his witness DW2 Surinder Singh that it was after fresh construction by the defendant has led to the heartburning to the plaintiff and thus, has invoked the jurisdiction of the Court.
The learned trial Court and the first appellate Court had adequately considered the evidence of the pleas of the two sides and rightly concluded that both the parties are in possession of their respective shares and there is no question of any encroachment by any one of them. There is nothing reflected from the plaint, evidence and otherwise regarding any easementry rights of the plaintiff having been violated. The conclusions drawn by the two courts below have been correct appreciation of the evidence, needs to be upheld.
There being consistent findings of the courts below, finding no merit in the present appeal the same is dismissed.
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RATTAN PAL SINGH 2015.01.12 18:28 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court
1 issue framed by the court
Whether the appellant is entitled to a permanent injunction restraining the respondent from closing ventilators to secure light and air?
1 provisions across 1 enactments
Joga Singh
Baldev Singh @ Baldev Chand
RATTAN PAL SINGH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
