Rakesh Kumar Garg, J. - (1.) THIS is plaintiffs' second appeal challenging the judgments and decrees of the Courts below whereby their suit for permanent injunction restraining respondent No. 1 from paving the street through the courtyard of the plaintiffs, as detailed in the plaint, was dismissed.
(2.) AS per the case of the appellants, the disputed place is a part and parcel of the courtyard of their house whereas according to the respondents, it is a pubic street used by the villagers since the time immemorial. While affirming the findings of the trial Court, the Lower Appellate Court observed as under: After considering the rival contentions of the parties and after going through the record, I am of the view that there is no merit in this appeal and the same deserve dismissal. Ex. P1 is the site plan relied upon by the appellants, in which, the points EFGH have been marked where the respondents are carving out a street. As per the case of the appellants, this place is a part and parcel of the courtyard of their house, whereas, according to the respondents, it is a public street used by the villagers since the time immemorial. The fact that this portion was being used as a street by the villagers has been admitted by the witnesses examined by the appellants. Dharampal (PW -2) has categorically stated that the street in dispute is being used by everybody. He has also described the boundaries adjoining to the street in dispute. He has no where stated that the site in dispute is a part of the courtyard of the house of the appellants. This witness is closely related to appellant Karnail Kaur being her brother -in -law. Therefore, he would not have deposed against her interest. Therefore, his statement has to be believed. Then, PW -3 Balwinder Kaur has also admitted in her cross -examination that the people used to go through the passage in dispute and according to her, there is no dispute regarding the street and the dispute is only regarding the wall. The controversy in question has been set at rest by PW -4 Mehma Singh who in his cross examination has deposed that about 7 years back, Karnail Kaur tried to block the street and then the dispute took place. The dispute was regarding the encroachment of the passage and the defendants were objecting to it. He has further stated that half portion of the street is pucca and half portion of it is Kacha and due to the dispute, Kacha portion of the street could not be made pucca. He has further stated that whole of the locality used the street in dispute and that Karnail Kaur is trying to block the passage and include the same in her property. From these admissions of the witnesses of the appellants, it is evident that the site in dispute EFGH as shown in the site plan Ex. P1 is a common street. No cogent and convincing evidence has been led on the file by the appellant to show that the disputed street is a part and parcel of the courtyard of their house. The Panchayat resolution as well as correspondence with the Govt. Officers including the BDPO, SDM, Kharar would show that it is the appellants who are trying to encroach the public street.
(3.) THE fact that the disputed portion is being used by the villagers has been admitted even by the witness of the appellants, namely, Dharam Pal (PW -2) and Mehma Singh (PW -4). Even the Local Commissioner appointed by the Court has not supported the version of the appellants. Thus, the witnesses of the appellants have not supported them.;