The need for reasonable apprehension and evidence to justify a court decree, highlighting the lack of evidence of encroachment by the defendants and the unsubstantiated assumptions made by the lower Appellate Court.

JUDGMENT

Rajbir Sehrawat, J. (Oral) - The present regular second appeal has been preferred by the defendants No.1 to 3 of the suit; against the judgment and decree dated 25.09.1995 passed by the Additional District Judge, Hoshiarpur, whereby the appeal filed by the respondents/plaintiffs No.1 to 3 has been accepted by setting aside the judgment and decree dated 24.04.1993 passed by the Sub Judge III Class, Hoshiarpur.

2. The brief facts of the case are that the plaintiffs/respondents No.1 to 3 had filed a suit seeking permanent injunction against the present appellants and some of the respondents; for restraining them from obstructing or encroaching upon the passage comprised in Khasra No.1322 and further for injunction restraining the defendants from dispossessing the plaintiffs/respondents No.1 to 3 from the land measuring 27 kanals and 09 marlas included in the khasra number as detailed in the head note of the plaint.

3. After considering the respective claims, the Trial Court dismissed the suit based upon the report of the Local Commissioner, under which it had come that the appellants/defendants No.1 to 3 had not encroached upon the passage comprised in Khasra No.1322. Rather, there was some encroachment upon the land of passage comprised in the aforesaid khasra number; by the plaintiffs themselves.

4. Aggrieved against the same, the plaintiffs/respondents No.1 to 3 filed an appeal before the lower Appellate Court. The said appeal has been allowed vide judgment and decree dated 25.09.1995 and the suit has been decreed. Hence, the present appeal has been filed by defendants challenging the said judgment and decree passed by the lower Appellate Court.

5. Arguing the case, learned counsel for the appellants has submitted that the Court below has totally misread the evidence on file, as well as, the legal aspects. The appellants had nothing to do with the land measuring 27 kanals and 09 marlas which was owned by the plaintiffs. The dispute was, essentially, regarding the passage comprised in Khasra No.1322. None of the Court below has found that the appellants had made any encroachment upon the land of passage comprised in Khasra No.1322. Rather, the report submitted by the Local Commissioner establishes the encroachment by the plaintiffs themselves. Hence, the lower Appellate Court has gone totally wrong in law in passing the judgment and decree in favour of the plaintiffs/respondents No.1 to 3, and thereby, legalizing the encroachment made by the plaintiffs/respondents No.1 to 3 on the land of passage, by default. Learned counsel has further submitted that neither the appellants have encroached upon the land of passage comprised in Khasra No.1322 nor do they have any intention of doing so. Rather, the appellants undertake not to encroach upon any land of passage comprised in Khasra No.1322. Hence, the judgment and decree passed by the lower Appellate Court deserves to be set aside.

6. On the other hand, learned counsel for respondents No.1 to 3/plaintiffs has submitted that the lower Appellate Court has rightly recorded that merely the encroachment by the plaintiffs on the passage, if any, would not give a right to the defendants/appellants; as well, to encroach upon the land of passage. Therefore, there is nothing illegal, if the Court below has passed the judgment and decree of injunction against the present appellants. Hence, the appeal deserves to be dismissed.

7. Learned counsel for respondent No.7 has submitted that, undisputedly, there is a passage comprised in Khasra No.1322. That passage has to be kept intact. None of the parties is entitled to encroach upon the land of the passage. Hence, the appellants have rightly been injuncted by the Court below.

8. Having heard learned counsel for the parties and having gone through the case file, this Court finds that essentially the case was for permanent injunction restraining the appellants from blocking the passage comprised in Khasra No.1322 or encroaching upon the same. Howeve