Second appeal regarding permanent injunction and mandatory injunction. Bench held Appellate Court discharged onus under Section 96 CPC; appeal dismissed due to lack of illegality. (Note: Writ Petition adjusted to suit context per content).
The second appeal was dismissed.
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.1531 of 2016
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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1531 of 2016 Date of Decision.11.05.2018
Karam Singh and another ......Appellants Vs Ajit Singh and others .....Respondents
CORAM:HON'BLE MR. JUSTICE AMIT RAWAL
Present: Mr. M.L. Saini, Advocate for the appellants.
-.- AMIT RAWAL J.(ORAL)
The appellants-plaintiffs are aggrieved of the partial reversal of the judgment and decree dated 17.10.2013 by the lower Appellate Court vide its judgment and decree dated 16.09.2015 whereby the relief qua permanent injunction has been upheld but other reliefs were declined, in essence, the defendants have been permanently restrained from obstructing the plaintiffs from passing through the gair mumkin rasta comprised in Khasra No.107. As regards the mandatory injunction directing the defendants to remove the alleged obstructions on the rasta has been declined.
Mr. M.L.Saini, learned counsel appearing on behalf of the appellants-plaintiffs submitted that the trial Court on the basis of evidence brought on record decreed the suit in toto but the lower Appellate Court without adverting to the report of the local commissioner i.e. the demarcation report and the aks shajra reversed the finding vis-à-vis mandatory injunction. The local commissioner report has neither been adverted to nor its contents as on two occasions the local commissioner had visited the site, therefore, there is gross illegality and perversity.
I have heard learned counsel for the appellants, appraised
PANKAJ KUMAR 2018.05.16 11:57 I attest to the accuracy and integrity of this document
RSA No.1531 of 2016 -2-
the paper book and of the view that there is no force and merit in the submissions of Mr. Saini. Concededly, the Kanungo had visited the spot and with the help of Halqa Patwari conducted the demarcation and submitted report dated 8.8.2009 Ex.PW1/C which was supplemented by a coloured aks shajra Ex.PW1/D. Since the parties were still not satisfied, the Court appointed the local commissioner and on the basis of the report of the local commissioner-Kanungo and as well the aks shajra , it found that the passage on the phirni i.e. border line of the village was not in straight line and had a bend/curve at its eastern side when it touches the village abadi and in order to make it straight, owners of adjoining lands merged portions of their own land. There is no detail in the suit as to when, how and in what manner the defendants had obstructed the passage, necessitating removal of the same. In the absence of the same, the lower Appellate Court brushed aside the oral evidence vis-à-vis the documentary evidence.
In view of the aforementioned, I am of the view that the lower Appellate Court has discharged the onus as enshrined under Section 96 of the Civil Procedure Code. The argument of Mr. Saini has not been able to bring the case with the realm of illegality and perversity, much less, no substantial question of law arises for determination by this Court. No ground for interference is made out. The second appeal is dismissed.
(AMIT RAWAL) JUDGE
May 11, 2018 Pankaj*
| Whether reasoned/speaking | Yes |
|---|---|
| Whether reportable | No |
PANKAJ KUMAR 2018.05.16 11:57 I attest to the accuracy and integrity of this document
2 issues framed by the court
Whether the lower Appellate Court discharged the onus to reverse the trial court's finding on mandatory injunction.
Whether substantial question of law arose for interference in the second appeal.
1 provisions across 1 enactments
Karam Singh and another
Ajit Singh and others
AMIT RAWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
