Kulbir Singh @ Sukhbir Singh & Ors. v. Kehar Singh & Ors.

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Vikas Bahl, Advocate, for the appellants. Mr. Vijay Lath, Advocate, for respondent Nos.1 to 3. ***** RAKESH KUMAR JAIN, J. By this judgment, I shall be disposing of two appeals bearing RSA No.2901 of 2009 and RSA No.2902 of 2009 both titled as 'Kulbir Singh @ Sukhbir Singh Vs. Kehar Singh and others'. Both the appeals have been filed by the defendants (Kulbir Singh etc.) against judgment and decree of the Courts below by which suit filed by the plaintiffs was decreed and counter-claim filed by the defendants was dismissed. In short, the plaintiffs filed the suit for permanent injunction alleging themselves to be the owners in possession of a Taur being part of Khasra No.2544/1 to 1847 [hereinafter referred to as the “property in dispute”]. It was alleged that father of the plaintiffs sold some area to defendants as shown in green colour in the site plan abutting rasta on its southern side as well as rasta on some portion of its western side. The defendants had opened a gate and are using the said rasta on the western side as well as on southern side, but when the plaintiffs intended to raise construction of boundary wall, the defendants threatened to interfere forcibly in their possession by encroaching upon the suit property. The RSA No.2901 of 2009 (O&M) - 2 - ***** defendants, contested the suit by filing written statement along with a counter-claim. In the written statement, a preliminary objection was taken by the defendants that the plaintiffs are neither owners nor have any concern with the property in dispute. On merits, it was replied that father of the plaintiffs had sold the property, as shown in blue colour in the site plan produced by the defendants, vide sale deed dated 03.12.1982 and after purchase of this property, the defendant Ram Asra (since deceased) raised the construction of his house over the same. The gate of house opens in the rasta as shown in red colour in the site plan annexed with the written statement and the said rasta is being used by the defendants for approaching their property. It was alleged that the plaintiffs have illegally claimed 2 Karam wide drain as shown in yellow colour to be rasta which is being used by the defendants. In the counter-claim, the defendants sought injunction directing the plaintiffs to restore the site as shown in red colour in the site plan bearing Khasra No.2544/1 to 1847 after removing manure heap which is alleged to have been illegally placed by them. The plaintiffs filed replication and reply to the counter-claim. On the pleadings of the parties, issues were formulated by the learned Trial Court. Both the parties led their oral as well as the documentary evidence. The learned Trial Court vide his judgment and decree dated 04.11.2006 decreed the suit of the plaintiffs and restrained the defendants from interfering in any way in possession of the plaintiffs by obstructing in the raising of the construction of the boundary wall and the counter-claim of the defendants was dismissed being without any merit. The defendants had filed two appeals, i.e. RCA No.101 of 2006 and RCA No.102 of 2006, in order to challenge the judgment and decree of the learned Trial Court by which the plaintiffs' suit was decreed and the counter-claim of the defendants was dismissed. The learned First Appellate Court, vide his judgment and decree dated 25.02.2009, dismissed both the appeals after observing as under: - “10. The perusal of the record shows that the sale deed Ex.D5 is admitted by both the parties. RSA No.2901 of 2009 (O&M) - 3 - ***** This sale deed was executed on 03.12.1982. The appellants are claiming passage situated towards eastern side of the property sold vide sale deed Ex.D5 on the basis of this very sale deed. However, the perusal of the sale deed shows that it is clearly mentioned that towards the eastern side, there is remaining property of vendor. Further, there is no reference in the sale deed, if any passage has been provided to the vendee through remaining land of the vendor as claimed by the appellants in their written statement as well as in counter claim. The perusal of the record shows that the portion shown in red colour in site plan Ex.D6 is not passage, rather, it is property of the respondents, which was previously owned by Bishan Chand and which was not sold vide sale deed Ex.D5. Rather, in the sale deed, a Rasta towards southern side and the western side of the sold property has been shown. According to the photographs, mark BCD, the passage towards southern side is now bricked paved by the Gram Panchayat. The plea of the appellants that in fact, there is no passage as per jamabandi Ex.D2 is contrary to the actual position at the site as Kh. No.2546/1 to 1847 mentioned as Gair Mumkin Nala vests with Gram Panchayat and Gram Panchayat has itself brick paved the same and converted into passage, which is being used by the appellant and other co-villagers. The appellant has not produced any evidence to show that actually no passage exists at the site, rather RSA No.2901 of 2009 (O&M) - 4 - ***** a Nala exists. Thus, there is no force in the arguments advanced by learned counsel for the appellant that the property of the appellant has no Rasta.” The present appeals have been strenuously argued by learned counsel for the appellants in which he has tried to project that there is no passage available to the defendants for the purpose of approaching their property. I have carefully gone into the judgment and decree of the Courts below have also seen the site plan as well as the photographs mark BCD from which it is apparent that there is a pucca rasta which goes to the property of the defendants, therefore, there is no question of defendants to use the plot of the plaintiffs for the purpose of their ingress and outgress. Except for arguing on the question fact, no substantial question of law has been raised by learned counsel for the appellants. Thus, in the absence of any substantial question of law, the present appeal cannot be maintained in view of Section 100 of the Code of Civil Procedure, 1908 and as such, both the appeals are without any merit and as such, the same are hereby dismissed. The parties are directed to bear their own costs. September 14, 2010. vinod* (RAKESH KUMAR JAIN) JUDGE