GOPI RAM AND ORS. Vs. KALU RAM

JUDGEMENT

(1.) In this appeal, judgment and decree dated 16.08.2014 passed by the Additional District Judge, Fazilka, stands impugned vide which judgment and decree dated 10.09.2013 passed by Civil Judge (Junior Division), Fazilka vide which the suit filed by the plaintiff-respondent was dismissed, has been set aside and suit decreed in favour of the plaintiff-respondent. The suit for permanent injunction was filed by the respondent restraining the appellants from creating any hindrance or hurdles in the peaceful use and enjoyment of the street shown with red colour and marked as ABCD in the site plan, situated at village Katehra, Tehsil Fazilka with a further prayer of restraining the appellants from blocking the gate of the house of the respondent which opens in the said street. The suit was dismissed by the Civil Judge (Junior Division), Fazilka vide decision dated 10.09.2013 primarily on the ground that the site plan (Ex.P-1) relied upon by the respondent-plaintiff showed the gate as 'proposed gate' meaning thereby that no gate existed at the spot and the photographs placed on the file by the appellants-defendants did not depict any gate at the site in dispute. This resulted in the dismissal of the civil suit preferred by the respondent-plaintiff.

(2.) In the first appeal preferred by the respondent-plaintiff, the Lower Appellate Court, on the basis of the written statement filed by the appellants-defendants, wherein it was admitted that the street marked as ABCD was a public street and vests with the Gram Panchayat and it being a common street and respondent-plaintiff, admittedly, residing in the house situated in that street has a right to open the gate in the common street has decreed the suit by stating that the respondent-plaintiff has every right to open his gate in the public street and the appellants-defendants whose house is also on the opposite side of the common street marked as ABCD, has no right to restrain the respondent-plaintiff from using the said street or open the gate of his house in the same. The appellants-defendants have been restrained from creating any hindrance or hurdles in the peaceful use and enjoyment in the street shown with red colour and marked as ABCD in the site plan, situated in Village Katehra, Teshil Fazilka. Appellants-defendants have also been restrained from blocking the gate of the house of the respondent-plaintiff which open in the said street.

(3.) Counsel for the appellants has argued that in the site plan which has been produced by the respondent-plaintiff, it has been depicted that the gate is proposed to be opened in the street ABCD. If it is a proposed gate, there is no question of the decree being granted in favour of the respondent-plaintiff as they, themselves, have admitted that there is no such gate existing in the street. Referring to the said site plan, he has indicated that the house of the appellants-defendants is virtually opposite to the house of the respondent-plaintiff and the respondent-plaintiff has his main gate already opened on the public street, on the other side of the house which is on the Western side whereas the proposed gate is on the back side of the house which would fall in the Eastern side of the house of respondent-plaintiff. He, accordingly, contents that the reversal of the well-reasoned findings recorded by the Lower Appellate Court, cannot sustain.