Lt. Col. A. S. Dhillon v. Smt. Sawinder Kaur & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kanwaljit Singh, Senior Advocate with Ms. Sukhwinder Kaur, Advocate for the appellant. None for respondent no.1. * * * L. N. MITTAL, J. (Oral) : Defendant no.3 has filed the instant second appeal. Respondent no.1 Sawinder Kaur filed suit against the appellant and respondents no.2 to 4 for permanent injunction restraining the defendants from raising any construction and from blocking in any manner the disputed street measuring 54' x 20' towards east of the property of the plaintiff and her children measuring 468 sq. yards comprising in khasra no.83/2. The plaintiff's case is that her husband Dalbir Singh (since deceased) purchased plot measuring 468 sq. yards comprising of khasra no.83/2 measuring 80' on west, 69' on east, 50' on north and 63' on south in R. S. A. No. 3025 of 2009 2 Village Gumtala, from Joginder Singh, vide sale deed dated 21.06.1983 registered on 22.06.1983. There is a street 20' in width and 54' in length towards east of the said property, as also mentioned in the sale deed. On the death of Dalbir Singh, the aforesaid plot has been inherited by the plaintiff and her children. Defendants have their plot opposite to the plot of the plaintiff, having purchased it from the same vendor Joginder Singh. However, the defendants are trying to merge the aforesaid street in their plot illegally and forcibly. The defendants alleged that they have purchased their plot from Joginder Singh and others and there is no street measuring 20' x 54', as alleged by the plaintiff. On the other hand, there is a street measuring 20' x 26' only. The plaintiff has no right in the said passage beyond the length of 26'. Learned Additional Civil Judge (Senior Division), Amritsar, vide judgment and decree dated 22.08.2006, decreed the suit of the plaintiff, thereby restraining the defendants from raising any construction in the disputed street and from blocking the same in any manner. First appeal preferred by all the defendants has been dismissed by learned Additional District Judge, Amritsar, vide judgment and decree dated 09.04.2009. Feeling aggrieved, only defendant no.3 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file, whereas no one has appeared for respondent no.1-plaintiff inspite of service. The admitted facts are that the plaintiff's husband purchased plot measuring 468 sq. yards vide sale deed dated 21/22.06.1983 (Ex.P-1). In the said sale deed, it has been mentioned that length of eastern side of the plot is 69'. In the boundaries, it has been mentioned that there is 20' wide road towards east of the said plot. After conclusion of the said sale deed, a R. S. A. No. 3025 of 2009 3 note was added that length of the eastern 20' wide road is 54' only. The defendants purchased their plot vide subsequent sale deed dated 28.08.1990, wherein the length of the disputed street has been mentioned to be 26' only instead of 54'. Both the lower courts have concluded that the sale deed in favour of plaintiff's husband being prior in time, the street measuring 20' x 54' is held to be proved because the same vendor could not subsequently sell part of the said street to the defendants. Learned counsel for the appellant vehemently contended that this approach of the courts below is erroneous and illegal because merely on the basis of the sale deed of plaintiff's husband being prior in time, such a finding could not be recorded. The contention cannot be accepted because the plaintiff's husband purchased the plot with the street being in the east having dimension 20' x 54'. Existence of the said street is a right appurtenant to the plot purchased by the plaintiff's husband. Having given this right to the plaintiff's husband, the vendor Joginder Singh could not have sold a part of the said street to the defendants. In other words, vide sale deed dated 28.8.1990, the defendants could not have derived any title to the part of the street, which is claimed by the plaintiff to be a street. The approach of both the courts below is fully justified and does not suffer from any error or illegality. Right of the disputed street attaching to the plot of the plaintiff could not be transferred to the defendants by a subsequent sale deed by the same vendor, when the vendor himself was not left with any title therein in view of prior sale deed in favour of plaintiff's husband. Learned counsel for the appellants next contended that the disputed street was not depicted in the revenue record. However, this contention is not substantiated by pleading or evidence and has, therefore, to be repelled. Learned counsel for the appellant emphatically referred to report of Local Commissioner and contended that in view thereof, it cannot R. S. A. No. 3025 of 2009 4 be said that any street is existing at the spot. This contention is also devoid of merit. Learned counsel for the appellant has shown me the report of Local Commissioner. It simply mentions that there is no specific demarcation of the disputed street at the spot. However, it would mean that even street measuring 20' x 26', as admitted by the defendants, is also not there. On the other hand, the entire site of the disputed street, claimed by the plaintiff, was lying vacant. Construction material was lying thereon. Boundary wall of the plot of the plaintiff was existing, whereas there was no boundary wall of the plot of the defendants. It would mean that there was open vacant site, which could be used as street and is proved to be a street in view of sale deed in favour of plaintiff's husband. In fact, this is the grievance of the plaintiff that the defendants intended to raise construction on the street and intended to block the same. The said grievance is substantiated by the report of Local Commissioner. However, the report of Local Commissioner does not, in any manner, depict that no street was in existence at the spot. Learned counsel for the appellant also contended that foot note in the sale deed in favour of plaintiff's husband regarding measurement of the street being 20' x 54' has been added later on and the defendants have even examined Manjit Singh son of vendor Joginder Singh as witness. However, this contention has no weight because if the foot note is ignored, then the measurements of the disputed street would be 20' wide and 69' in length, along the entire length of the plaintiff's plot on eastern side. By the foot note in the sale deed, the same is rather restricted from 69' to 54'. Consequently, if the foot note is ignored, the case of the plaintiff would not be effected in any manner. No other contention has been raised before me. For the reasons recorded herein above, I find that there is no illegality or perversity in the concurrent finding recorded by both the courts R. S. A. No. 3025 of 2009 5 below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed. February 10, 2010 monika ( L. N. MITTAL ) JUDGE