IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 20.02.2025 Bikram Singh ....Appellant V/s Mehar Chand and another ....Respondents CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL Present: Mr. Sarju Puri, Advocate, for the appellant.

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VIKRAM AGGARWAL, J. (ORAL)

Plaintiff (Bikram Singh) assails the judgment and decree dated

21.01.2020 passed by the Court of learned District Judge, Shaheed Bhagat Singh Nagar, dismissing the appeal preferred against the judgment and decree dated 17.07.2019 passed by the Court of learned Addl. Civil Judge (Sr. Divn.), SBS Nagar, vide which the suit for mandatory injunction filed by the plaintiff was dismissed.

2. For the sake of convenience and clarity, parties shall be referred to as per their original status.

3. Plaintiff (Bikram Singh) filed a suit for mandatory injunction for directing the defendants (Mehar Chand and Gram Panchayat of Village Ranewal, Tehsil Nawanshahr, District SBS Nagar) to remove the obstruction/overhanging projections/construction shown in red colour in the site plan and marked by letter ABCD, situated at Village Ranewal, Tehsil Nawanshahr, District SBS Nagar. A direction was also sought to the defendants to remove the staircase constructed in between the two overhanging projections on the ground floor and first floor, through which defendant No.1, in connivance with defendant No.2 had encroached upon the public street (shown in yellow colour in the site plan). Consequential relief of permanent injunction restraining the defendants from raising any further construction was also sought.

4. The case set up by the plaintiff was that he was owner in possession of the house shown in green colour in the site plan and defendant No.1 was the owner in possession of the property shown in blue colour. The common street was shown in red and yellow colour, which was for the use of inhabitants of the locality and was the only access to the house of the plaintiff from the main road. Defendant No.1, in connivance with defendant No.2 had forcibly and illegally encroached upon a part of the common street by raising obstruction/overhanging projections/construction on the ground floor and first floor and had also constructed a staircase between the overhanging projections, thereby encroaching upon the public street. Under the circumstances, the suit was filed.

5. The suit was opposed by defendant No.1, whereas defendant No.2 did not appear despite service. In the written statement, certain preliminary objections as regards maintainability, estoppel, waiver and acquiescence, locus standi, the suit being bad for non-joinder and mis- joinder of necessary parties, the plaintiff not having approached the Court with clean hands etc. were raised. On merits, a stand was taken that defendant No.1 was running a Karyana shop for earning his livelihood, which was under his ownership and he had every right to use the same. It was averred that previously the level of the shop was lower than the street as a result of which water of drains used to come into the shop. Defendant No.1 had, therefore raised the level of the shop and had constructed a step to enter his shop. It was averred that the shop had been sold before filing of the suit.

6. From the pleadings of the parties, following issues were framed by the trial Court:-

“1. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for?OPP

2. Whether plaintiff is entitled to the decree of permanent injunction as prayed for?OPP

3. Whether the suit is not maintainable?OPD

4. Whether the plaintiff is barred by his own act and conduct to file this suit?OPD 5. Relief.

7. Parties led their respective evidence. The trial Court dismissed the suit filed by the plaintiff and the appeal preferred against the said judgment and decree was also dismissed by the first appellate Court leading to the filing of the present second appeal.

8. I have heard learned counsel for the appellant.

9. Learned counsel for the appellant has submitted tha