- (1.) This appeal arises from a suit for injunction filed by the appellant-plaintiff restraining the respondents-defendants from interfering in the site marked 'ABCDA' shown in red in the site plan dated 28.2.1980 and also from obstructing the appellant-plaintiff from constructing wall 'BC' and 'CD'. The Courts below dismissed the suit holding that the site in dispute marked 'ABCDA' in respect of which an injunction was sought, had not been purchased by the appellant-plaintiff while purchasing the suit property. It was observed that Smt. Bhago purchased the suit property except the portion marked 'ABCDA' in the site plan Exhibit P-2. The appellant- plaintiff purchased the suit property from Smt. Bhago vide sale deed dated 19.12.1978. At the time of admission of the second appeal, learned counsel for the appellant relied upon the fact that the statement of Nasib Chand had been misread and in fact in para 9 of the lower appellate Court judgment, it was erroneously stated that Nasib Chand had not been examined as witness which was not a fact, as Nasib Chand had appeared as PW6.
(2.) Having heard Mr. H.S. Hooda, learned Senior Advocate for the appellant, I find no ground to interfere with the decree of the Courts below. No doubt Nasib Chand has been examined as PW6 and to that extent, there is an error in the judgment of the lower appellate Court. The same is, however, of no effect. The site plan Exhibit P-2 shows that red portion in respect of which an injunction is sought, was a passage which was in line with the line continuing in the portion in yellow colour. It was, in view of this fact, that even after noting the error in the judgment of the lower appellate Court, this Court vacated the injunction. The order dated 1.9.1981 of this Court is as under :- "Para 9 of the judgment of the lower appellate Court is clearly erroneous as I find that Nasib Chand appeared as PW6. Admitted. A look at the plaint (Exhibit P2) filed by the plaintiff shows that the red portion in it is a passage which is in line with the line continuing in the portion in yellow colour. Although the plaintiff claims that red portion belongs to him, according to the defendants it belongs to all the residents of the locality whose houses are situated on it. Keeping in view the fact that even the red portion is a passage, the ex-parte interim injunction is vacated. However, it is made clear that both the parties to this case will be entitled to use this passage pending disposal of the appeal and none of the parties would be entitled to obstruct or raise any construction thereon."
(3.) In view of the fact that the appellant-plaintiff was not proved to be the owner of the red portion 'ABCDA' in respect of which an injunction was sought by the appellant-plaintiff, the dismissal of suit of the appellant-plaintiff was justified.;