High Court of Punjab and Haryana, Chandigarh
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Naresh Kumar. v. Pawan Kumar and othe - RSA-2783-2006  RD-P&H 5199 (3 August 2006)
In the High Court of Punjab & Haryana at Chandigarh.
Regular Second Appeal No.2783 of 2006.
Date of decision:27.7.2006.
Pawan Kumar and others.
Coram: Hon'ble Mr. Justice S. N. Aggarwal.
Present: Mr.Akshay Bhan Advocate for the appellant.
S.N. Aggarwal, J.
Pawan Kumar respondent filed a suit for permanent injunction alleging that the suit property was a 15 feet wide street. His wife had purchased a plot abutting the site in dispute over which a house was constructed and the said house had shutters and stair-case in the street in dispute. The two plots purchased by his brother which had come to his share also abut the said street. The shops-residences of other persons namely Rishpal and Ajit Singh also open in this street.
They have their shutters and ingress to the stair-case in this street. The stairs, gates and windows of Babu Ram, Book Seller also open in this street. The water supply line, sewer connection, drain and electricity Regular Second Appeal No.2783 of 2006,
supply also pass through this street. Across the street towards west, Naresh Kumar appellant and others have plots but they are trying to encroach open the street and close the same. Hence, the respondent sought injunction against them.
The appellant and respondent Nos.2 and 3, in their written statement, pleaded legal objections about the maintainability of the suit.
It was asserted that the site in dispute was their personal property and all the pleadings of Pawan Kumar were controverted.
Issues were framed.
Pawan Kumar, respondent No.1 examined his son Deepak Kumar as PW-1, Risal Singh as PW-2, Mehender Kumar as PW-3, Dalbir Singh Nain, Advocate (Local Commissioner) as PW-4, Ashok Kumar as PW-5, Vijay Kumar as PW-6, Rajan Bajaj Clerk as PW-7, Sat Narayan as PW-8, Ramesh Chander Clerk as PW-9, Vijay Kumar as PW-10 and Manmohan Singh Gill Advocate as PW-11.
In support of his case, the appellant examined Naresh Kumar as DW-1, Data Ram Patwari as DW-2, Raj Kumar as DW-3, Hukam Chand as DW-4, Jai Bhagwan as DW-5, Om Parkash as DW-6 and Richhpal as DW-7.
After assessing the evidence, the learned trial Court concluded that the site in dispute was 15 feet wide street and even Local Commissioner had submitted report Exhibit PW4/D in which he narrated that the windows, shutters and stair-case of the houses abutting the site in dispute open in the disputed street. Accordingly, the Regular Second Appeal No.2783 of 2006,
suit was decreed by the learned trial Court vide judgment and decree dated 3.12.2005.
An appeal was filed by the appellant against this judgment dated 3.12.2005. The learned Lower Appellate Court up-held the findings recorded by the learned trial Court and dismissed the appeal vide judgment and decree dated 24.4.2006.
Hence, the present appeal.
The submission of learned counsel for the appellant was that the report of Local Commissioner cannot be believed as the Local Commissioner could not answer the particulars of the property on the other side of the house which abuts this street. It was also submitted that no municipal record has been produced to show if the suit property was a public street.
This submission has been considered. In the sale deeds which had come into existence much before the present dispute arose, the suit property is shown to be 15 feet wide street. Even in the sale deeds executed on 9.3.1964, in favour of brother of Pawan Kumar respondent, the suit property was shown as a street. Moreover, it has come on the file that the shutters,windows and doors of many houses open in the site in dispute. Therefore, the submissions made by the learned counsel for the appellant have no weight. Therefore, obviously the site in dispute is a public street.
Moreover, both the Courts below have also recorded concurrent finding of fact that the site in dispute is a public street and is Regular Second Appeal No.2783 of 2006,
not the private property of Naresh Kumar appellant. Nothing has come on the file to disturb the said concurrent finding of fact recorded by the Courts below.
July 27,2006. ( S. N. Aggarwal )
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