RSA No.1761 of 2019(O&M)

and other connected case

-1-

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

108

RSA No.1761 of 2019(O&M)

Date of decision:22.03.2022

Sarwan Singh and others

...Appellants

Versus

Gurbachan Singh

...Respondent

RSA No.1755 of 2019

Sarwan Singh and others

...Appellants

Versus

Gurbachan Singh

...Respondent

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. H.S.Dhindsa, Advocate, for the appellants.

ANIL KSHETARPAL, J (Oral)

The hearing of the case is being held through video

conferencing on account of restricted functioning of the Courts.

The defendants while assailing the correctness of the concurrent

findings of fact arrived at by the courts below, have filed these two Regular

Second Appeals. There is a slight modification of the judgment passed by

the First Appellate Court.

Some facts are required to be noticed.

The plaintiff filed a suit for grant of decree of mandatory

injunction to remove the encroachment over a public passage which is

claimed to be 20 feet wide. The plaintiff is the owner of the house in the

aforesaid street and he alleges that the defendants have encroached upon 7

NARESH KUMAR

2022.03.24 15:41

I attest to the accuracy and

integrity of this document

RSA No.1761 of 2019(O&M)

and other connected case

-2-

feet x 27 feet of the public street.

The defendants contested the suit while admitting that there is

20 feet wide passage on the Eastern side of the house of the plaintiff, which

is being used by the public since 1978. The defendants asserted that there is

no encroachment.

Both the courts, on appreciation of the evidence and on

examining the admission of DW2-Bakshish Singh, have decreed the suit.

The learned trial Court passed a decree to the extent of 1'9” feet

width. The First Appellate Court has decreed the suit in entirety.

It has come in evidence that the defendants purchased a plot

measuring 8 marlas only, whereas, he has acquired possession over the plot

measuring 10 marlas.

This Bench has heard the learned counsel representing the

appellants at length and with his able assistance perused the judgments and

decrees passed by the courts below.

The learned counsel representing the appellants contends that

the official of the municipal committee did not produce the building plan

and the Municipal Committee was not impeladed as a party. He further

contends that in the case in question, it was incumbent on the Court to get

the area demarcated on the spot.

It is not in dispute that the plaintiff and the defendants have

their respective houses adjoining each other. It is also evident that there is

no dispute with regard to width of the public street. In view of the facts

available on the file and the evidence of Bakshish Singh-DW2 (the

draftsman produced by the defendants), it is proved that the appellants have

NARESH KUMAR

2022.03.24 15:41

I attest to the accuracy and

integrity of this document

RSA No.1761 of 2019(O&M)

and other connected case

-3-

encroached upon the portion of land existing on the Eastern side of their land

marked as 'ABCD'. The appellants have failed to prove that the said portion

belongs to them or it was constructed legally. It is also not in dispute that

the appellants have no other document of title except Ex.D1 (sale deed)

which is with respect to a plot measuring 8 marlas.

Keeping in view the aforesaid established facts, the non-

production of the building plan by the Municipal Committee does not stop

the Court from passing a decree.

The next argument of the learned counsel representing the

appellants is with regard to non-impleadment of Municipal Committee as

party-respondent.

Once the plaintiff is adversely affected by the encroachment of

the public street near his house, then, non impleadment of Municipal

Committee would not result in dismissal of the suit for non-joinder of the

parties. It may be noted here that the trial court as well as