Pillo Devi vs Paramjit Singh and Others

Mahesh Grover, J.—This appeal is directed against the judgment of the learned first Appellate Court dated 14.1.2006.

The plaintiff/appellant filed a suit for permanent injunction seeking to restrain the respondents from opening doors etc. in the passage which is their private passage from the village Phirni and shown by letters EFGH in the site plan attached with the plaint. It is pleaded that she is owner in possession of the suit property.

The respondents disputed the claim of the appellant and pleaded that it is a Gali-Share-am which runs from east to west and bears khasra No. 137 in the revenue record.

The following issues were struck while dealing with the matter:

Whether the plaintiff is entitled to the relief of permanent injunction, as alleged? OPP

1-a. Whether the respondents have willfully and intentionally violated the court order dated 22.4.1995? If so, to what effect? OPA

Whether property in dispute bearing mark EFGH is a private passage, as alleged? OPP

Whether the suit is not maintainable? OPD

Whether civil court has got no jurisdiction? OPD

Whether Gram Panchayat is necessary party? OPD

Relief.

The learned trial Court decreed the suit of the appellant and restrained the respondents from opening the door in the Gali by holding that the appellant was owner in possession of the same.

In appeal, the findings of the learned trial Court were upset by the learned first Appellate Court which has resulted in filing of the present regular second appeal.

Learned Counsel for the appellant at the time of issuance of notice of motion contended as follows:

Learned Counsel contends that disputed land does not fall in Khasra No. 137 and appellant does not have any objection if respondent opens his door in Khasra No. 137.

Learned Counsel for the respondents has contended that if this contention is to be accepted, then the appellant has no case at all for the simple reason that her whole case was that she was owner in possession of the suit property and had prayed that the respondents be restrained from opening the door in the Gali-Share-am which is comprised in khasra No. 137. Once it is accepted that she has no objection to the opening of the door in the Gali which is comprised in Khasra No. 137, then the second question whether she is owner of the suit property or not cannot be answered in the regular second appeal for the simple reason that both the Courts below have concurrently held that the Gali exists in Khasra No. 137 and belongs to the Gram Panchayat. To bring home the point he has drawn attention of this Court to the observations of the learned trial Court in para 16 wherein it is observed that "Admittedly, the Gali-Share-am having khasra No. 137 is owned by Panchayat deh as per the jamabandi Ex.D4 and Aksh-Sajra Mark A". Similarly, the first Appellate Court in para 13 of its judgment observed that "Admittedly, the gali-share-am having Khasra No. 137 owned by Panchayat Deh. As per copy of jamabandi Ex.D4 and Aks Shajra Mark ''A'', this street is gali-share-am. The gali-share-am leads to the land of Khasra No. 136 in which the property of Kartar Singh (father of defendants) is situated...."

After perusing the impugned judgments, I am of the opinion that a pure finding of fact has been recorded by the Courts below that the Gali-Share-am exists in Khasra No. 137 which belongs to the Gram Panchayat and it is also borne out from the document in the shape of jamabandi Ex.D4 and Aks-Sajra Mark A. No such material has been shown to this Court from which it could be inferred that the findings recorded by the Courts below are perverse so as to warrant an interference in the regular second appeal. No substantial question of law arises for the determination of this Court.

Consequently, the appeal being totally devoid of any merit is dismissed.