Rajinder Yadav and Another vs Jagmal and Others

L.N. Mittal, J.

CM No. 21614-CII of 2010

Allowed as prayed for.

Main Case.

Plaintiffs have filed the instant revision petition under Article 227 of the Constitution of India impugning judgment dated 03.08.2010 passed by learned Additional District Judge, Gurgaon thereby allowing appeal preferred by defendant-respondent No. 1-Jagmal against order dated 23.05.2009 passed by learned Additional Civil Judge (Senior Division), Gurgaon.

Plaintiffs have filed suit alleging that they are owners in possession of a double storeyed building. The dispute is regarding 20 feet vide rasta (passage) on northern side of the plaintiffs'' building. The plaintiffs alleged that defendants intended to encroach upon the said passage. Accordingly, the plaintiffs sought permanent injunction restraining the defendants from encroaching upon the disputed passage. Temporary injunction to the same effect during pendency of the suit was claimed by the plaintiffs by moving separate application for the purpose.

The defendants admitted the existence of the disputed passage, but pleaded that the plaintiffs themselves have encroached upon the said passage. Plot of defendants and houses of other persons abut on the said passage. Portion of the passage under house of the plaintiffs has been depicted in the site plan produced by the defendants. On the other hand, disputed site shown by the plaintiffs in their plaint is part of the defendants'' plot and is not part of passage.

Learned Trial Court vide order dated 23.05.2009 allowed plaintiffs'' application for temporary injunction and restrained the defendants from raising any construction on the disputed passage. However, appeal preferred by defendant No. 1 against the said order of the trial Court has been allowed by learned Additional District Judge, Gurgaon vide impugned judgment dated 03.08.2010 and thereby plaintiffs'' application for temporary injunction stands dismissed.

I have heard Learned Counsel for the petitioners and perused the case file.

Learned Counsel for the petitioners vehemently contended that the defendants have not even pleaded that plaintiffs have encroached upon any part of the disputed passage and, therefore, observation of the lower appellate Court to this effect is erroneous and unwarranted. The contention is devoid of merit. Perusal of orders of the Courts below reveals that the defendants have specifically pleaded that plaintiffs have encroached upon part of the disputed passage. The contention is thus erroneous and unwarranted.

Learned Counsel for the petitioners next contended that no opportunity was given by the lower appellate Court to prefer objections against the report of Local Commissioner, and lower appellate Court decided the appeal on the date of receipt of the report of Local Commissioner. This contention is also factually incorrect. Learned Counsel for the petitioners stated that report of the Local Commissioner is dated 04.10.2009 whereas impugned judgment of the lower appellate Court is dated 03.08.2010 i.e 10 months after the report of the Local Commissioner. Thus petitioners had sufficient opportunity to prefer objections against the said report, but admittedly no objections were preferred against the said report by the petitioners. Consequently, lower appellate Court was justified in placing reliance on report of Local Commissioner for adjudicating upon the question of temporary injunction. The said report indicated that plaintiffs themselves had encroached upon part of the disputed passage. The report also indicated that alignment of the house of the plaintiffs-petitioners is not in consonance with the alignment of other houses in the same row. On the other hand, house of the plaintiffs is ahead of other houses and it also prima facie depicts that plaintiffs have encroached upon part of the disputed passage.

Learned Counsel for the petitioners contended that report of the Local Commissioner cannot be taken to be conclusive proof of the existing state of affairs at the spot. The contention does not help the petitioners. It is correct that report of Local Commissioner is not conclusive proof. However, at the same time, the same can be looked into and taken into consideration. The report prima facie indicated encroachment by the plaintiffs on part of the disputed passage.

Learned Counsel for the petitioners also contended that trial Court could not appoint Local Commissioner. The contention has no merit. There was no embargo on the power of the lower Appellate Court to appoint Local Commissioner, if the same was required for adjudication of the appeal. Moreover, no such objection was raised before the lower appellate Court nor the order of the lower appellate Court appointing the Local Commissioner was ever challenged and even report of the Local Commissioner was not challenged by filing objections.

For the reasons recorded aforesaid, I find that petitioners are themselves prima facie guilty of encroaching upon part of the disputed passage and, therefore, they are not entitled to relief of temporary injunction. The petitioners have failed to make out a case to depict that defendants are encroaching upon the disputed passage. There is no illegality in the impugned judgment of the lower appellate Court which is based on sound reasons. The revision petition is thus bereft of any merit and is accordingly dismissed in limine.

However, it is expressly made clear that nothing observed hereinbefore shall be construed as an expression of opinion on the merits of the suit.