R.S.A.No. 2317 of 2004 (O&M)

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In the High Court of Punjab and Haryana at Chandigarh

R.S.A.No. 2317 of 2004 (O&M)

Date of decision: 11.12.2009

Tarsem Singh and another

......Appellants

Versus

Gurmail Singh

.......Respondents

CORAM: HON'BLE MRS. JUSTICE SABINA

Present:

Mr.P.K.Gupta, Advocate,

for the appellants.

Mr.Sandeep Jain, Advocate,

for the respondent.

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SABINA, J.

Plaintiffs-appellants filed a suit for declaration and

permanent injunction, which was dismissed by the Civil Judge

(Jr.Divn.), Hoshiarpur vide judgment and decree dated 24.9.2002.

In appeal, the said judgment and decree were upheld by the

Additional District Judge, Hoshiarpur vide judgment and decree

dated 28.4.2004. Hence, the present appeal.

Brief facts of the case, as noticed by the lower appellate

Court in para Nos. 2 and 3 of its judgment, are as under:-

R.S.A.No. 2317 of 2004 (O&M)

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“2.

In nut shell, the case of the plaintiffs was that

they were owners of the land shown as green in the site

plan and that the defendant was owner of the land shown

as yellow, along with the passage in dispute; that the land

of Lashkar Singh was situated towards the southern side

of their properties and all the said properties had khasra

no.104 and abut on street on the western side having

passage from that side; that in the year 1891 there had

been partition of the aforesaid khasra number between

the co-sharers and the land of said khasra number was

carved out into different plots which were allotted to the

co-sharers; that the plaintiffs were allotted khasra

no.104/2/8, whereas the defendant was allotted khasra

No.104/2/35; that after the patition of the land, plaintiffs

had been using the passage shown as red marked ABCD

in the site plan for approaching their land from the main

street situated towards the western side; that there was

no other passage to the land of the plaintiffs except the

passage marked ABCD; that the plaintiffs had been using

the passage without any interruption continuously and

peacefully for a period of more than 100 years and they,

thus acquired the right of easement by way of necessary

and prescription; that the defendant was threatening to

obstruct the passage of the plaintiffs by raising

R.S.A.No. 2317 of 2004 (O&M)

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construction over the passage in dispute; that the

defendant, however, was not desisting from his illegal

design. Hence, the suit was filed.

3.

The suit was contested by the defendant by

taking up preliminary objections that the suit was not

maintainable; that the site plan furnished by the plaintiffs

was not correct as per the spot; that the suit was not

within limitation. On merits, it was averred that the

property owned by the defendant measuring 29 marlas

had been purchased by Bachint Singh on the basis of

sale deed dated 28.8.1956 and the property of the

defendant was within the lal lakir of the village whereas

the property of the plaintiffs was out side the lal lakir of

the village. It was claimed that towards the northern side

of the property of the defendant was the property of

Sardul Singh and on the southern side was that of

Lashkar Singh and on the eastern side was the property

of the plaintiffs and on the western side was a street. It

was denied that there was any passage from the property

of the defendant. It was also refuted that the property of

plaintiffs, defendant and that of Lashkar Singh had been

joint or that it bore khasra No.104. It was asserted that

there was old construction of the defendant in the

property owned by him but the plaintiffs had intentionally

R.S.A.No. 2317 of 2004 (O&M)

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not indicated the bath room, khurra, handpumb and khurli

(manger) of the defendant, in his site plan. It was claimed

that the measurement of the properties given in the site

plan of the plaintiffs was also incorrect. It was further

asserted that