Krishan vs Satbir and Others

L.N. Mittal, J.

CM No. 14345.C of 2009

For reasons mentioned in the application which is accompanied by affidavit, delay of 122 days in filing the appeal is condoned. RSA No. 4834 of 2009

This is second appeal by defendant No. 1 Krishan.

Suit was filed by Nanku Ram (since deceased and represented by respondents No. 1 to 4) against Krishan appellant and Sant Lal (since deceased and represented by proforma respondents No. 5 to 7). The plaintiff alleged that he is owner in possession of house in front whereof there is private passage on eastern side, 5 feet in width, used only by plaintiff and his neighbours since time immemorial. There are other houses towards east of the said passage including house of defendants, but there is public street for those houses on their eastern side. There exists no door, window or other opening in the rear wall of those houses towards disputed private passage. The plaintiff accordingly sought permanent injunction restraining defendants from opening any door, window etc. in the disputed private passage. During pendency of the suit, defendant No. 2 opened a door in his house towards the disputed passage and therefore by amendment, relief of mandatory injunction was claimed for closing the said door.

The defendants, inter alia, pleaded that the disputed street is a public street and it has been so depicted in sanctioned site plan of the year 1977. The defendants are real brothers and they have partitioned their house and the portion abutting the disputed street fell to the share of defendant No. 2 and therefore, defendant No. 2 has access to his portion from the disputed street only. Ventilators, windows and water disposal of the roof of house of defendant No. 2 already existed towards the disputed street.

Learned Civil Judge (Senior Division), Jind vide judgment and decree dated 23.8.2007 found the disputed street to be private passage and accordingly decreed the suit directing defendant No. 2 to close the door which was opened towards disputed street during the pendency of the suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Jind vide judgment and decree dated 22.1.2009. Feeling aggrieved, only defendant No. 1 has preferred the instant appeal.

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

At the outset it has to be noticed that according to the written statement filed by the defendants, portion abutting the disputed passage fell to the share of defendant No. 2 Sant Lal who needed access to his portion through disputed passage. However, legal representatives of Sant Lal defendant No. 2 have not preferred second appeal against the judgment and decree of the lower appellate court. In the written statement, defendant No. 1 appellant did not plead any right of access through the disputed street to his portion. In view of this position, the instant appeal filed by defendant No. 1 only merits dismissal.

Even on merits, it has been found by both the courts below, as is also the admitted position, that no door of the house of the defendants opened towards disputed passage and only during the pendency of the suit, a door was opened in their house towards that passage. It is also the admitted position that there are many other houses in the same row as the house of defendants but no door or other opening is there in the other houses as well towards the disputed passage. This admitted position is sufficient to hold that the disputed passage is a private passage of the plaintiff. Had this passage been a public street as alleged by the defendants, then there would have been doors, windows and ventilators of the house of the defendants as well as of the other houses abutting the said passage towards east. The very fact that there is no such door or other opening towards disputed passage in the houses abutting the passage on eastern side would give rise to the inference that the disputed passage is a private passage of the plaintiff. The defendants have also not placed on record any evidence from the Municipal Committee records to depict that the disputed passage is a public street. If it had been a public street, it would have vested in Municipal Committee and record thereof would have been available with Municipal Committee, but no such record has either been produced and for this reason as well, inference has to be drawn that the disputed street is not a public street.

Both the courts below have come to concurrent finding that the disputed passage is a private passage of the plaintiff. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal. No question of law much less substantial question of law arises for determination in this second appeal. The appeal is, therefore, found to be without any merit and is accordingly dismissed in limine.