RSA No.5753 of 2019 (O&M)

1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA No.5753 of 2019 (O&M)

Date of Decision : 25.03.2022

Nanak Chand & Ors.

....Appellants

VERSUS

Chhida Lal & Ors.

....Respondents

CORAM : HON’BLE MRS. JUSTICE ALKA SARIN

Present :

Mr. Amit Alok, Advocate for the appellants.

ALKA SARIN, J.

Heard in virtual mode.

CM-16479-2019

This is an application for condonation of 228 days delay in

re-filing the present regular second appeal.

For the reasons mention in the application the same is allowed.

Delay in re-filing the present regular second appeal is condoned.

CM-16480-2019

This is an application for condonation of 75 days delay in filing

the present regular second appeal.

For the reasons mention in the application the same is allowed.

Delay in filing the present regular second appeal is condoned.

RSA No.5753 of 2019

The defendant-appellants are in second appeal against the

decisions by both the Courts below whereby the suit of the plaintiff-

respondent No.1 for mandatory injunction has been decreed. The appellants

were defendant Nos.1, 3 and 4 before the Trial Court, respondent No.1 was

YOGESH SHARMA

2022.03.25 17:13

I attest to the accuracy and integrity of this

document

Punjab and Haryana High Court,

Chandigarh

RSA No.5753 of 2019 (O&M)

2

the plaintiff while respondent Nos.2 and 3 were defendant Nos.2 and 5. The

parties are hereinafter referred to as their status was before the Trial Court.

The facts in brief are that according to the plaintiff the path in

dispute in Khasra No.96, 97 is in existence for the last more than 60 years

and is being maintained by defendant No.5 (Gram Panchayat of village

Mandawar) from grants sanctioned by the Government. It was averred that

the path in dispute is meant for common purposes and the doors, windows,

ventilators of the house of the plaintiff open towards the path in dispute

which is also being used by the plaintiff for ingress and egress to his house.

The plaintiff approached the Trial Court averring that the defendants had

forcibly raised construction over a portion 12' x 6' in front of his house and

blocked the door of the house of the plaintiff. The plaintiff sent complaints

to the DSP South Gurugram and other functionaries but no action was taken

and the defendants refused to dismantle the impugned construction made

over the path in dispute. Thus, the suit for mandatory injunction was filed for

directing defendant Nos.1 to 4 for removing the impugned construction.

The defendant Nos.1 to 4 filed a joint written statement wherein

they admitted the existence of the path in dispute and the houses of the

parties as described in site plan Ex.P1. Defendant Nos.1 to 4 however

claimed exclusive rights over the path in dispute claiming it being their

personal property carved out by them from their land in Khasra No.96.

Defendant Nos.1 to 4 denied that the path in dispute was meant for common

purposes or was maintained by defendant No.5 (Gram Panchayat of village

Mandawar). Defendant No.5 (Gram Panchayat of village Mandawar) in its

written statement supported the case set-up by the plaintiff claiming that the

path in dispute was in existence since inception of the village and is meant

YOGESH SHARMA

2022.03.25 17:13

I attest to the accuracy and integrity of this

document

Punjab and Haryana High Court,

Chandigarh

RSA No.5753 of 2019 (O&M)

3

for common purposes for the villagers for ingress and outgress and that

defendant No.5 (Gram Panchayat of village Mandawar) is maintaining the

path in dispute as well as the drainage system and it is under its control.

Defendant No.5 (Gram Panchayat of village Mandawar) also questioned the

right of the defendant Nos.1 to 4 in raising the impugned construction.

The following issues were framed by the Trial Court :

1.

Whether the plaintiff is e