JUDGMENT :

NIDHI GUPTA, J.

CM-7154-C-2015

Prayer in this application filed under Section 151 CPC is for condonation of delay of 146 days in refiling the accompanying appeal.

2. Heard.

3. For the reasons mentioned in the application which is duly supported by an affidavit of Clerk of learned counsel the applicant/appellant, the same is allowed and delay of 146 days in refiling the appeal is condoned.

RSA-2985-2015 (O&M)

Present Second Appeal has been filed by defendant No.2 against the concurrent judgments and decrees of the Courts below; whereby suit filed by the plaintiff/respondent No.1 herein for permanent and mandatory injunction, has been decreed by both the Courts below.

2. It was the pleaded case of the plaintiff in the plaint that he is owner in possession of the suit house marked as DAJKLM in the site plan situated at village Kunbra. Plaintiff had purchased the suit property from Ujjagar Singh, GPA of Mohinder vide registered Sale Deed dated 04.03.1983. Towards the southern side of the house, there is a kacha band street marked as ABCD wherein door, window and two parnalas of the house of plaintiff open. The said street was meant for the house of Dev Singh and Bachan Singh, which was situated towards the west of the house of the plaintiff. House of Dev Singh was subsequently purchased by defendant No.1 Sher Singh. It was alleged that defendants are now threatening to encroach upon kacha band street and fix door at point AB. Plaintiff had requested defendants many times to refrain from doing so. But to no avail. With these pleadings, present suit was filed on 13.04.2010.

3. Upon appraisal of the pleadings and the evidence led by the parties, the Civil Judge (Junior Division), S.A.S. Nagar, Mohali had decreed suit of plaintiff vide judgment and decree dated 23.04.2013 as follows: -

“10. In view of my finding on the aforementioned issues, the suit of the plaintiff is decreed with costs for permanent injunction restraining the defendants from encroaching upon the Kucha Band street ABCD by raising any construction therein and from closing the windows and the parnalas of the house of the plaintiff adjoining the said Kucha Band street and further for mandatory injunction directing the defendant(s) to remove the iron gate fixed at point AB. The decree sheet be prepared and file be consigned to the record room (J), Kharar.”

4. The Civil Appeal filed by defendants No. 1 and 2 was dismissed by Additional District Judge, S.A.S. Nagar, Mohali vide judgment and decree dated 29.05.2014. Hence, present second appeal by defendant No.2.

5. It is inter alia submitted by learned counsel for the appellant that the learned Courts below were in error in decreeing the suit of the plaintiff. It is submitted that in the Sale Deed, rasta is mentioned. However, there is no mention of iron gate. Learned counsel submits that even the site plan Ex.PW2/B produced by the plaintiff does not show any gate allegedly installed by defendants. It is argued that therefore learned Courts below could not have held that the defendants are encroaching upon the Rasta.

6. It is submitted that the disputed rasta was paved by the Gram Panchayat. Therefore, if the appellant had installed an iron gate or encroached upon public rasta then Gram Panchayat would have taken action against him. However, admittedly no such action has been taken by Gram Panchayat against the defendant. It is contradictorily submitted that iron gate was installed by the appellant more than 30 years ago. It is submitted that photographs produced by the appellant before the learned Courts below show that the alleged portion marked as ABCD is part of the house of the appellant and that pucca street is upto the iron gate AB. This portion is being used by the appellant as a part of the courtyard/bara. The cattle are there and the entrance for the house of the appellant is the only entrance and no other entrance and therefore courts below did not appreciate that the defendants would suffer an irreparable loss b