SARJEET SINGH Vs. RAM PHOOL AND ANOTHER

JUDGEMENT

(1.) This is an appeal filed by the defendant against the concurrent judgments and decrees passed by the Courts below whereby the suit was decreed in favour of the present respondents/plaintiff and thereafter, the appeal filed by the present appellant was also dismissed.

(2.) The brief facts as mentioned in the judgment of the lower Appellate Court are that the present respondent/plaintiff (hereinafter referred as 'plaintiff') had filed a suit for permanent injunction against the present appellant/defendant (hereinafter referred as 'defendant'). Praying for injunction restraining the defendant from interfering in the passage or uprooting the bricks laid in the passage or in any manner closing the passage or create obstruction in the usage thereof. It was pleaded by the plaintiff that the disputed passage was situated within the Abadi of village Dhani Chang and is a closed passage which is being used by the plaintiff for the last 60 years, i.e., since the time, he constructed his house at that place. It was pleaded that the defendant had no concern with the disputed passage but he was bent upon interfering in the usage of the same by the plaintiff by throwing garbage in that passage, by tethering his cattle and by encroaching upon the land of the passage. It was further pleaded that earlier the defendant had filed a suit and got that suit decreed on 07.04.1992 by showing a wrong site plan to the Court. Therefore, it was claimed that the defendant has no right, title or interest qua the passage.

(3.) Upon notice the defendant had filed written statement and besides taking ordinary preliminary objections had pleaded on merits that the land, which is claimed to be a passage by the plaintiff is, in fact, his ancestral property. It was pleaded that he and his forefathers have been in possession of the land in dispute since the inception of the village. It was further pleaded that the plaintiff and one Ram Singh had filed several false suits claiming the land to be a passage. It was further pleaded that the site plan filed by the plaintiff was not as per the factual position on the spot. The plaintiff has filed the present suit in order to support Ram Singh in his litigation and to harm the defendant. No such passage has ever been in existence at any point of time. The above said Ram Singh and his forefathers had no land adjoining the land of the defendant except a small piece of land measuring 4' X 10' which has already been left on the spot. There is no gali or rasta on the spot as claimed by the plaintiff towards the said land measuring 4' X 10'. It was further pleaded that nobody has used the disputed passage as passage. Rather the defendant is using the same for putting garbage, collecting wood and parking his agricultural equipment i.e. tractor, trollies, etc. It was pleaded that the defendant has raised a wall by placing the bricks which is 27" towards the south of the disputed street. It was further pleaded by the defendant that Lalji, the grandfather of the Ram Singh had four sons namely, Bharat Singh, Rohtash, Ugarsain and Padam Singh. Lalji had taken the land in exchange from Mehtab Singh and constructed his residential house and he lived in that house along with his four sons throughout his life. After his death, his sons continued to be the owner in possession of the said house. Lalji had opened the door towards the land of the defendants by leaving the above said space of 4' X 10' which is their private rasta and which meets the gal! sareaam towards the South. It was further pleaded that Ram Singh had deliberately shown closed street in the suit and similarly plaintiff has shown the disputed passage towards the West of his house. The house of the defendant is situated towards the East of the land which was left vacant. This position is continuing since 1933. It was further claimed that Rugha and Jagroop are cousins who are brothers of above said Mehtab Singh. Rugha and his brother, Jagroop and his brothers were earlier living together but thereafter they separated and effected a partition. Therefore, on their asking Mehtab Singh, father of the defendant, permitted the plaintiffs to use the land of defendant for ingress or outgress. It was claimed that there is no passage on the spot, rather, the plaintiff is using this land with their consent. Now, with a malafide intention he wants to get the suit land declared as a passage; by disputing its status. Still further it was pleaded that in 1993, Trishpal Singh adopted son of Sheodan had filed a suit against the defendant and his father Mehtab Singh, wherein, he described the suit land as towards East of above said land measuring 4' X 10. The suit was contested by the defendant, therefore, the same was dismissed on 09.12.1999 and the appeal was also dismissed. Hence, it was pleaded that the suit land is not a passage. Rather it is ancestral land of the defendant over which he had stored bricks and is also throwing garbage, tethering his cattle and is parking his agricultural equipments.