Devinder Kaur vs Mata Shakti Mandir and Others

L.N. Mittal, J.—This is second appeal by plaintiff Devinder Kaur who was successful in the trial court but has been non-suited by the lower appellate court.

Case of the plaintiff-appellant is that she is owner in possession of the plot shown in blue colour in the site plan. This plot can be accessed by two streets i.e. on southern and eastern sides. However, defendants have constructed wall depicted by letters BD in the eastern street in June, 2000 thereby blocking the access of the plaintiff''s plot through the said street. The defendants have rested roof over portion AC of the said wall and thereby closed the eastern passage of the plaintiff''s house. Plaintiff accordingly sought mandatory injunction directing the defendants to remove the aforesaid illegal construction and its malba. Plaintiff also sought permanent injunction restraining the defendants from raising any construction in the disputed street and from encroaching upon the same.

The defendants denied the plaint allegations. It was pleaded that there is no street on the eastern side of the plaintiff''s house. The plaintiff had earlier also filed suit for permanent injunction which was dismissed as withdrawn vide order dated 13.3.2000. The plaintiff had also initiated proceedings u/s 133 of the Code of Criminal Procedure (in short, Cr.P.C.), but the same were filed by the concerned court vide order dated 31.3.2000. It was pleaded that the plaintiff has no right, title or interest in the disputed site. Construction upto roof level has been raised by defendant No. 1 Mandir on the disputed site being owner in possession thereof. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Barnala vide judgment and decree dated 2.1.2006 decreed the plaintiffs suit. However, first appeal preferred by defendants has been allowed by learned Additional District Judge, Barnala vide judgment and decree dated 5.12.2007 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellant emphatically contended that Tehsildar PW3 who had visited the spot has reported that the disputed site is a street and therefore, this fact is proved. The contention cannot be accepted. Tehsildar in his report referred to letter dated 22.2.2000 Ex. P2 written by Executive Officer of the Municipal Committee to depict that the disputed site is a street. However, no record of the Municipal Committee is forth coming to depict that the disputed site is a street. On the other hand, spot inspection made by Tehsildar in proceedings u/s 133 Cr.P.C. is not sufficient to hold the disputed site to be a street. Moreover, in proceedings u/s 133 Cr.P.C. defendants had produced affidavits of Chiranji Lal and Mangat Rai affirming that the disputed site is not a street. The plaintiff-appellant who had instituted the said proceedings admitted the said position to be correct and accordingly the said proceedings were filed vide order dated 31.3.2000 Ex. D7. Thus, even before filing of the instant suit in June, 2000, the plaintiff admitted in proceedings u/s 133 Cr.P.C. that the disputed site is not a street.

In addition to the aforesaid, there is significant documentary evidence completely belying version of the plaintiff-appellant. The appellant-plaintiff purchased her plot vide sale deed Ex. P3 depicting that on the eastern side of the said plot there was property of Chiranji Lal Mangat Rai. This sale deed of plaintiff-appellant herself completely rules out her version that the disputed site is a street.

There is finding by lower appellate court that the disputed land is not a street. The said finding is based on appreciation of evidence and is supported by cogent reasons. Lower appellate court is the final court of fact. Finding recorded by the lower appellate court is not shown to be perverse or illegal so as to call for interference in second appeal. The plaintiff has miserably failed to depict that after purchase of her plot vide Ex. P3, the disputed site was left as street for her plot or house. On the other hand, it was private property of Chiranji Lal and Mangat Rai and therefore, the plaintiff-appellant cannot claim any right, title or interest therein.

For the reasons aforesaid, I find no merit in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed.