HAMIR SINGH Vs. SURJIT SINGH AND OTHERS

JUDGEMENT

(1.) The plaintiff-appellant is in second appeal before this Court having been unsuccessful in both the courts below.

(2.) The plaintiff-appellant filed a suit seeking permanent injunction restraining the defendants from encroaching upon any part of the passage as described in the heading of the plaint and for further restraining the defendants from obstructing the plaintiff-appellant or any member of his family from using the passage in dispute. It was pleaded that land comprised in khasra no.345 (3-3) and khasra no.346 (6-1) was owned in equal shares by one Partap Singh to the extent of half share and the remaining half share was owned in equal shares by the daughters of Jeoni widow of Harditta. The aforementioned persons orally partitioned such property about 22/23 years back, whereby daughters of Jeoni got 4 bighas 11 biswas out of khasra no.345 min (1-16) and khasra no.346 min(2-15) and came into possession of this land as exclusive owners and it was pleaded that they had access to such land through the paha in khasra no.361. On the other hand Partap Singh got 4 bighas and 13 biswas of land comprised in khasra no.345 min (1-7) and khasra no.347 min (3-6) and came into separate possession of such abadi area at that point of time. It was averred that the plaintiff-appellant had purchased 17 biswas of land vide registered sale deed dated 6.11.1984. Possession of the same was delivered to the plaintiffappellant at the spot and he constructed his house thereupon. Earlier such house was being used by the plaintiff-appellant for agricultural purposes, tethering of cattle and parking of his tractor-trolly and other agricultural implements and partly was being used for his residence. It was pleaded that the passage in question is the only passage for ingress and exit and there is no other passage available to him. The house of the defendants/respondents is situated on the north of the house of the plaintiff-appellant as also that of one Harpal Singh and for entry and exit of the defendants-respondents, there is a paha depicted in khasra no.361. It was pleaded that the defendantsrespondents have forcibly fixed a gate and have started using the passage in dispute and open space adjacent to the house of Harpal Singh illegally and forcibly. The case set up by the plaintiff-appellant was that it was necessary to retain the passage in dispute having width of 23 feet 9 inches and which would have its opening on the phirni. The defendants-respondents were threatening to encroach upon the passage of the plaintiff-appellant and it was under such circumstances that the suit had been instituted.

(3.) Upon notice, written statement was filed, wherein it had been admitted that khasra nos.345 and 346 have been jointly owned by Partap Singh and Jeoni in equal shares and further there had been an oral partition thereof. It was, however, denied that daughters of Jeoni got 4 bighas and 11 biswas land and Partap Singh got 4 bighas and 13 biswas land as sought to be contended by the plaintiff-appellant. The stand of the defendantsrespondents was that both Partap Singh and Jeoni got 4 bighas and 12 biswas each in oral partition. Defendant no.1 took a stand in the written statement that he along with the family is in possession of 2 bighas and 12 biswas of land which was purchased from the daughters of Jeoni. In the site plan the plaintiff had shown passage out of which he wants to encroach upon 14 feet and 6 inches into 14 feet by 3 inches, although the passage actually is of 9 feet 6 inches (2 karams), which is already existing and leading to the house of the plaintiff-appellant from the main path. It was pleaded that the plaintiff-appellant had no right to the 23 feet land claiming it to be a Rasta . It was asserted that 14 feet 3 inches into 63 feet passage is part and parcel of the 4 bighas 12 biswas of land, owned by defendant no.1. All other averments were denied on merits.