Dharam Pal vs Rukmash and Others

L.N. Mittal, J.—Plaintiff Dharam Pal, having been non-suited by both the courts below, has come up by way of instant second appeal.

Case of the Plaintiff-Appellant is that portion depicted by letters ABCD in red colour in site plan is public street, which has been brick-paved by

Gram Panchayat and portion marked by letters EFGH in red colour in site plan is land of Mata Rani i.e. a religious place, but the Defendants,

without any right, title or interest therein, want to remove brick paving of the street and threatened to demolish the structure of Mata Rani. Street in

question leads to the house of the Plaintiff. The Plaintiff sought permanent injunction restraining the Defendants from demolishing the public street

and the structure of Mata Rani from the disputed sites ABCD and EFGH.

The Defendants inter alia pleaded that there is 08 marlas land of khasra No. 116 of Mata Rani. Site ABCD, depicted by the Plaintiff, is also

part thereof and is not a street. It was not brick-paved by Gram Panchayat. There is separate street for the house of the Plaintiff. On the eastern

side, street touches the house of the Plaintiff. Villagers have brick-paved the land of Mata Rani. On demarcation, the Plaintiff was found in

possession of half marla land of Mata Rani and some other persons, who were also found in possession, gave up their possession. Various other

pleas were also raised.

Learned Additional Civil Judge (Senior Division), Kaithal, vide judgment and decree dated 21.04.2009, dismissed the Plaintiff''s suit. First

appeal preferred by the Plaintiff has been dismissed by learned Additional District Judge, Kaithal, vide judgment and decree dated 19.07.2010.

Feeling aggrieved, Plaintiff has preferred the instant second appeal.

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

There is no dispute between the parties that the site depicted by letters EFGH in site plan Ex.P-1, produced by the Plaintiff, is part of land of

Mata Rani. The dispute remains regarding site depicted by letters ABCD in site plan, which is claimed by the Plaintiff to be street, but which is

claimed by the Defendants to be part of land of Mata Rani. The Plaintiff has, however, miserably failed to prove that the said site is a public street.

There is street on eastern side of the house of the Plaintiff for access to his house. The Plaintiff failed to substantiate his claim that site ABCD was

brick-paved by the Gram Panchayat being a street. On the other hand, Defendants have produced Resolution of Gram Panchayat depicting that

Gram Panchayat never brick-paved it.

Learned Counsel for the Appellant contended that as per demarcation report Ex.P-2, the disputed site is a street. The contention cannot be

accepted because the said demarcation report was obtained behind the back of the Defendants and not through the trial court. The said

demarcation report has rightly been discarded by the courts below. On the other hand, Defendants have also produced similar demarcation report

to depict that Plaintiff has encroached upon half marla land of Mata Rani. However, the said report also cannot be taken into consideration for the

same reason.

Be that as it may, there is concurrent finding by both the courts below that the disputed site depicted by letters ABCD in the site plan is not a

street. The said finding is based on appreciation of evidence and is supported by cogent reasons and is not shown to be perverse or illegal so as to

warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second

appeal. The appeal lacks any merit and is accordingly dismissed in limine.