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Karamjit Kaur & Anr v. Manjit Singh & Ors - RSA-1297-2005  RD-P&H 5090 (1 August 2006)
IN THE HIGH COURT OF PUNJAB AND HARYRNA AT
R.S.A. No.1297 of 2005
Date of Decision:- 04.08.2006.
Karamjit Kaur and another ....Appellants.
Mr.Mukant Gupta, Advocate.
Manjit Singh and others ....Respondents
CORAM:-HON'BLE MR.JUSTICE SURYA KANT
SURYA KANT, J.
This regular second appeal has been preferred by the defendants against whom a suit for permanent injunction has been decreed by both the Courts.
The respondent-plaintiffs No.1 to 3 filed a suit for permanent injunction alleging, inter alia, that they are owners in possession of the land situated in the revenue estate of village Majri Azim, Tehsil & District Fatehgarh Sahib fully described in the plaint. The aforesaid land was purchased by them from Sishan Singh son of Dhara singh and Satwinder Singh and Paramjit Singh sons of Sishan Singh through registered sale deed No.661 dated 23.5.1990.
Similarly, respondent Nos.4 and 5 were also owners in R.S.A. No.1297 of 2005 2
possession of khasra No.18 min of rectangle No.9 which they purchased from Gurbachan Singh (defendant No.3) vide sale deed No.4061 dated 11.1.1986 registered on 28.2.1986. It was alleged that Gurbachan Singh (defendant No.3) and his co-owner Sishan Singh sold these lands with a 'passage' which at the time of oral partition, was specifically described as "Pahi" and is used by the plaintiffs for approaching their lands. However, defendant Nos.1 and 2 in connivance with defendant No.3 have threatened that they shall encroach upon the land falling in the "Pahi". Hence, the suit for permanent injunction was filed.
Upon notice, the defendants (appellants herein) contested the suit primarily on the ground that when they purchased the land measuring 19 kanals and 15-1/2 marlas from defendant No.3 through registered sale deed No.664 dated 7.6.1993, the same was sold to them by specific khasra numbers and the possession of those khasra Nos. was also delivered to them at the spot. It was further averred that they have already installed a tubewell and a bore in khasra No.9/27 and as such the plea taken by the plaintiff- respondents that there was a passage within the said khasra number, is totally wrong and against the record.
Both the parties led oral as well as documentary evidence. On appreciation of the same, the learned trial Court held that there exists 'Pahi' about 17 Karams on Eastern side, 13 Karams on Western side and 10 Karams between the two Khasra numbers which were recently ploughed as mentioned by the Local Commissioner in his report. The trial Court further held that the said 'Pahi' was being used by the respondent-plaintiffs as a passage for going to their fields adjoining to the land of the appellants.
Consequently, a decree of permanent injunction restraining the appellants R.S.A. No.1297 of 2005 3
from interfering in the use of 'Pahi' by the respondent-plaintiffs was passed.
Aggrieved, the appellants preferred an appeal which has also been dismissed by the learned Additional District Judge, Fatehgarh Sahib vide his impugned judgment and decree dated 1.10.2004.
After hearing learned counsel for the appellants at length and upon perusing the judgments under challenge, I do not find any merit in this appeal.
The First Appellate Court, after discarding the oral evidence led by both the parties, decided to resolve the controversy solely by depending upon the documentary evidence on record. It has made reference to the sale deeds dated 20.5.1982 (Ex.P1), 28.5.1982 (Ex.P2) as well as the partition report No.321 dated 21.3.1990 (Ex.PG). The First Appellate Court then took notice of the sale deed Ex.PW2/A dated 23.5.1990 as well as Jamabandi Ex.PW1/A for the year 1991-92. The mutations No.575 ( Ex.PF ) and ( Ex.PF/L ) sanctioned on the basis of private partition in terms of the report ( Ex.PG ), have also been taken into account. Similarly, the First Appellate Court has made reference to the records of the revenue appeal decided by the Collector, in which statements including deposition dated 29.8.1991 (EX.PE), were made by some of the parties. Reference to the later Jamabandi for the year 1996-97 (Ex.P-X) has also been made. On a consideration of the aforementioned documentary evidence led by the respondent-plaintiffs, the First Appellate Court has come to the conclusion that 'Pahi' i.e. the passage in dispute, was in existence right from the year 1982 when the sale deeds Exs.P1 and P2 were executed. It has also been conclusively held that the respondent-plaintiffs had been using the said 'Pahi' to approach their lands. Consequently, the R.S.A. No.1297 of 2005 4
findings recorded by the trial Court have been upheld.
As can be seen from the very nature of lis and the documents admitted in evidence, a reference to which has been made by the First Appellate Court, the question as to whether:- (i)There exists a passage or not;
(ii)Since when the said passage was in existence; and (iii)Whether the same is being used by the respondent- plaintiffs to approach their lands or not ; are pure questions of fact which have been concurrently answered by the Courts below against the appellants.
These questions do not give rise to any substantial question of law warranting interference by this Court in this regular second appeal, which is accordingly dismissed.
August 03, 2006 ( SURYA KANT )
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