Jagdish Ram vs Jagtar Singh and Others

L.N. Mittal, J.—Plaintiff Jagdish Ram who was successful in the trial court but has been non-suited by the lower appellate court has filed the instant second appeal.

The dispute is regarding site depicted in red colour by letters A B C D E F G H I J in site plan Exhibit P-1. The Plaintiff claims it to be a passage leading to his house depicted by letters K L M N in the site plan. The alleged passage, according to the Plaintiff, leads from the street in the North upto Plaintiff''s house in the South. In between it bends towards East but again proceeds towards South.

The Defendants, however, alleged that Northern part of the disputed site depicted by letters A B C D I J is their private passage comprised of Khasra Nos. 61/23 and 61/24 whereas remaining Southern portion depicted by letters D E F G H I is not passage but is part of property of the Defendants.

Learned Additional Civil Judge (Senior Division), Anandpur Sahib vide judgment and decree dated 30.05.2005 decreed the Plaintiff''s suit holding the disputed site to be passage. However, first appeal preferred by Defendants No. 1 and 3 has been allowed by learned Additional District Judge, Ropar vide judgment and decree dated 02.09.2009 and thereby suit filed by the Plaintiff stands dismissed with cost. Feeling aggrieved, Plaintiff has filed the instant second appeal.

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

Learned Counsel for the Appellant referred to finding of the trial court. However, the said finding has been reversed by the lower appellate court. Even otherwise, the trial court was influenced and carried away by the report of the Local Commissioner who reported some new construction in part of the disputed site. However, merely because there was some new construction found at the site at the time of visit of the Local Commissioner, this by itself would not depict that the disputed site was a passage and had been blocked recently by the Defendants. On the contrary, admittedly there is street towards East as well as towards South of the house of the Plaintiff''s father depicted in the site plan. There is practically no evidence to depict that the disputed site is also a passage leading to the house of the Plaintiff or his father.

Learned Counsel for the Appellant referred to testimony of Shiv Ram DW-2 who stated that passage towards West of Guru Ram Rai Temple is personal passage of the Defendants and contended that existence of the disputed passage has thus been admitted by Defendants'' own witness. The contention is misconceived because this witness referred to Northern part of the disputed site and did not refer to the entire disputed site. Even the Defendants in the written statement have claimed the said Northern part of the disputed site to be their private passage comprised of Khasra Nos. 61/23 and 61/24. This claim of the Defendants is substantiated by copies of Aksh Masavi Exhibits D-3 to D-5 and copy of Jamabandi Exhibit D-6 depicting the land of Khasra Nos. 61/23 and 61/24 to be owned and possessed by the Defendants Nos. 1 and 2 as their Abadi property.

In addition to the aforesaid, a bare perusal of site plan Exhibit P-1 relied on by the Plaintiff himself depicts that there is property of Defendants on both sides of the disputed site. If the disputed site is accepted as passage, it would have the effect of bifurcating the properties of the Defendants into two portions lying on East and West of the disputed site. The very location of the disputed site passing through the property of the Defendants located on both sides of the site would also go to depict that the disputed site is not a passage.

Aforesaid conclusion is further fortified by copies of Aksh Masavi Exhibits D-3 to D-5 and copies of Jamabandis Exhibits D-6 to D-12. Perusal of these documents reveals that Defendant''s father Lakhu Ram has his house in Khasra No. 61/63 located on South-Eastern corner and there is street towards East as well as South of the said house. Property of Defendants comprised of Khasra Nos. 61/23 and 61/24 is located towards North and West at some distance. In the Aksh Masavi, there is street towards extreme West of the Abadi and there is also some passage in between but there is no passage at the disputed site as claimed by the Plaintiff. On the other hand, street depicted in yellow colour in site plan Exhibit P-1 has been shown to be existing in the Aksh Masavi but the disputed site has not been depicted as street or passage in Aksh Masavi. Learned lower appellate court has aptly dealt with the evidence in paragraph 11 of its judgment and has rightly arrived at the finding that the disputed site is not a street or passage. The said finding is fully justified by the documentary evidence on record as discussed in detail in paragraph 11 of the judgment of the lower appellate court.

Learned Counsel for the Appellant also referred to compromise dated 28.10.1982 Exhibit P-5. However, the said compromise is not linked with the disputed site.

For the reasons aforesaid, I find no merit in the instant second appeal. Finding recorded by the lower appellate court against the Plaintiff is justified by evidence on record and does not suffer from any illegality or perversity so as to call for interference in the second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is dismissed