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UTTARAKHAND HIGH COURT
Ravindra Maithani, J.
Vijay Singh and Anr. – Appellants
versus
Dharam Pal and Ors. – Respondents
First Appeal No.41 of 2003
Decided on 15.1.2021
Counsel for the Parties:
For the Appellants: None
For the Respondents:Tapan Singh, Advocate
IMPORTANT POINT
Permanent Prohibitory Injunction cannot be granted without proving foundational facts.
Headnote:
Injunction – Suit for Permanent Prohibitory Injunction – Appellants’ witnesses have not stated as to on which date, respondents threatened to obstruct pathway – There is no specific averment, date and time – It is plaint case that respondents are threatening to obstruct pathway at a particular point by extending their wall from point R towards east, as shown in plaint map – There is no evidence on record to even suggest as to on which date threat was given to extend wall – Appellants utterly failed to prove that any threat was ever extended by respondents to extend wall, as shown by letters Q and R in plaint map towards east – Wall was in existence prior to filing of suit – There is no cause to appellants to file suit – Appeal dismissed.
Held: The appellants’ witnesses have not stated as to on which date, respondents threatened to obstruct the pathway. There is no specific averment, date and time. It is the plaint case that the respondents are threatening to obstruct the pathway at a particular point by extending their wall from point R towards east, as shown in the plaint map. In his statement, PW3 Vijay Pal says that subsequent to filing of the suit, the wall has been extended.
On the other hand, the respondents have stated that their wall has been constructed long before filing of the suit and it is stated by the respondents in the written statements at the very first opportunity. It simply means that, in fact, the wall was in existence prior to the filing of the suit. There is no evidence on the record to even suggest as to on which date threat was given to extend the wall. Therefore, this Court is of the view that, in fact, the appellants utterly failed to prove that any threat was ever extended by the respondents to extend the wall, as shown by the letters Q and R in the plaint map towards east. The wall was in existence prior to filing of the suit. Learned court below has rightly observed in its finding on issue no.1 that the wall was in existence prior to the filing of the suit.
Point of determination is decided accordingly and in view of it, in fact, there is no cause to the appellants to file the suit. The learned court below rightly dismissed the suit. Accordingly, this Court is of the view that the instant appeal deserves to be dismissed. The appeal is dismissed. (Paras 16, 19 to 22)
Result: Appeal dismissed.
JUDGMENT
Ravindra Maithani, J.—Present appeal is preferred against the judgment and decree dated 30.09.2003, passed in Original Suit No. 68 of 1996, Vijay Singh and another Vs. Dharampal and others (for short “the suit”), by the court of learned Additional District Judge/ 3rd Fast Track Court, Haridwar ( for short “ the case”). By the impugned judgment and decree, the suit filed by the appellants has been dismissed.
2. The appellants filed the suit for permanent prohibitory injunction. According to the case, a pathway runs in the village of the parties from west to east and on the eastern side, it turns towards the north and joins a railway line. In the western side, the pathway turns towards south and goes to agricultural fields. At one point, on this pathway, at northern and western sides lies a vacant land of the respondents. This land is adjacent to the pathway. The appellants have shown the pathway in the map annexed with the plaint with the letters L, M, N and O. On the western side of this pathway, a wall raised by the respondents has been shown by the letters Q and R in the plaint map. It is the case of the appellants that the respondents in order to gain unlawful profit are threatening to obstruct the pathway by extending the Q and R walls towards eastern side. The respondents have no right at all to extend their wall on the pathway. The appellants requested the respondents not to obstruct the pathway, but they are adamant to do so and not desisting from their illegal presence. With these averments, the suit is filed for permanent prohibitory injunction, restraining the respondents to obstruct the pathway.
3. The respondents filed written statement to the suit. According to the respondents, the wall at letters Q and R, as shown in the plaint map had already been constructed, which is 3.5 feet in height and the respondents have no occasion to raise the wall any further. Therefore, the suit is infructuous.
4. It is the case of the respondents that, in fact, the pathway has been encroached by the appellants, but the respondents have never obstructed the pathway. It is as wide at the places adjacent to the land of the respondents as it is at other places.
5. Based on the pleadings of the parties, learned court below framed as many as nine issues as hereunder:-
(i) Whether the respondents have any right to obstruct the pathway, as shown by letters L, M, N and O in the plaint map 4A/8 and the appellants have right to easement over it?
(ii) Whether the appellants on their own have encroached the pathway and narrowed it? If so it’s effect?
(iii) Whether the suit is barred by provisions of Sections 38 and 41 of the Specific Relief Act,1877?
(iv) Whether the suit is bad for non-joinder of Brahm Singh and Hukum Singh?
(v) Whether the pathway has been properly shown in the map annexed with the written statement? If so it’s effect?
(vi) Whether the suit is undervalued and court fee paid is insufficient?
(vii) To what relief, if any, are the appellants entitled to?
(viii) Whether the suit is barred by the principles of estoppel and acquisence?
(ix) Whether the suit is barred by the Section 106 of Panchayati Raj Act?
6. Parties filed documents in support of their case. In order to prove the case, the appellant examined PW1 Khajan Singh, PW2 Jagpal, PW3 Vijay Pal in evidence. On behalf of the respondents, DW1 Raghuveer, DW2 Dharam Pal and DW3 Mitra Bhaskar Shah, Amin have been examined. The Amin’s report alongwith map was confirmed subject to evidence by the court on 20.02.1997.
7. After hearing the parties, the learned court below recorded the following findings:-
(i) On issue no. 1 the court held that it is not proved that the respondents are trying to encroach the pathway by extending the wall as shown at letters Q & R in the plaint map.
(ii) On issue no. 2, the court held that the appellants on their own had encroached the pathway and narrowed it.
(iii) On issue no. 3, the court held that the suit is barred by the pro
