Jasbir Singh v. Yash Pal

Mr. V.K.Sandhir, Advocate for respondent. **** SABINA, J. Plaintiff Yash Pal had filed a suit for permanent injunction restraining the defendant from opening any door or window in the wall in dispute and for mandatory injunction directing the defendant to close the doors already opened by him in the wall in dispute. The suit filed by the plaintiff was decreed by the Civil Judge (Jr.Divn.) vide judgment and decree dated 16.1.2006. Appeal filed against the said judgment and decree by the defendant was dismissed vide judgment and decree dated 12.11.2009 passed by the Additional District Judge. Hence, the present appeal by the defendant. R.S.A.No. 985 of 2010(O&M) 2 On 5.3.2010, the following order was passed by this Court:- “The defendant is in Regular Second Appeal assailing the findings recorded by the learned trial Court and that of the first Appellate Court. The respondent-plaintiff had filed a suit alleging that the appellant-defendant is interfering in the suit property.

It was alleged that the appellant and the respondent have houses which are adjacent to each other but separated by a wall and a passage. There has been a simmering discontent between the parties over the usage of the passage. On an earlier occasion the plaintiff/respondent had filed a suit against the appellant seeking to restrain him from demolishing the wall and from using the passage which was accepted by the learned trial Court vide its judgment dated 20.1.1998 and affirmed by the first Appellate Court on 2.9.2002. While decreeing the suit the learned trial Court had granted the relief in the following terms :- “............the suit of the plaintiff succeeds and is decreed and the defendant is restrained from demolishing the wall, however, he can use the passage as far as his property towards the western side of the alleged passage is concerned and the counter claim filed by the defendant being without merit fails and stands dismissed.

Parties are left to bear their own costs....” R.S.A.No. 985 of 2010(O&M) 3 In the instant suit the plea raised was that the passage marked as AB was meant for their exclusive use and it was purchased vide sale deed Ex.P1 and that the appellant had no right to use the same. It was pleaded by the plaintiff-respondent that the plea of the appellant that the passage is a public passage is without any substance as the same belongs to him alone. It was pleaded that earlier the appellant had tried to demolish the wall but now he has opened a door in the wall to use the passage. The appellant took up almost similar pleas which were taken in the earlier proceedings and stated that the land belongs to the Central Government and the passage was not the private property of the plaintiff-respondent. He denied that he was encroaching upon the passage or was trying to open a door in the passage. Both the Courts below concluded that he matter had been more or less conclusively determined in the earlier proceedings inter se between the parties and affirmed at the level of first Appellate Court.

The counter claim filed by the appellant in those proceedings was also dismissed. The suit of the plaintiff-respondent was decreed by taking into consideration the impact of the findings recorded by the Courts in the earlier proceedings as also on the basis of evidence that was led in the instant proceedings. The appellant was restrained from opening the door in the wall as also using the passage. In the Regular Second Appeal which has been R.S.A.No. 985 of 2010(O&M) 4 preferred in this Court it has been contended by the learned counsel for the appellant that his right to utilise the property has been curtailed and he contends that the findings of both the courts below are perverse and erroneous and that even if the findings in the earlier suit were to be considered then the same had to be interpreted in their entirety. He contended that in the earlier proceedings he was permitted to use the passage for egress and ingress to his house but the only restraint was that he would not demolish the wall.

He thus contends that now by virtue of the impugned judgments he has been restrained from using the passage altogether. I have heard the learned counsel for the appellant and have perused the impugned judgments and other record as well. The findings recorded by the Courts below concurrently are on a point of fact and there does not appear to be any misreading of evidence. The Supreme Court in numerous judgments has held that unless the Regular Second Appeal throws up a substantial question of law, the High Court would be well advised not to interfere in the same. Reliance can be placed on Rur Singh (dead) through LRs and others v. Bachan Kaur, (2009) 11 Supreme Court Cases 1. A perusal of the impugned judgments shows that purely a question of fact regarding existence of a R.S.A.No. 985 of 2010(O&M) 5 passage and its usage has been determined. In the previous proceedings it had been categorically held that the appellant had failed to establish that it was a public passage but it was meant for the use of only 4 or 5 persons who were residing in and around the house of the respondent.