Judgment:
Mahesh Grover, J.
1. This is plaintiff's second appeal directed against the judgment of the learned Trial Court dated 13.12.1995 and that of the First Appellate Court dated 11.10.2002.
2. The plaintiff-appellant filed a suit for permanent injunction seeking to restrain the respondent from blocking or encroaching upon the street in dispute which was depicted and marked by' letters ABCD and shown in red colour in the site plan attached to the plaint. It is the pleaded case of the appellant that the street has been in existence for a long time and it passes through land of Punjab Wakf Board upon which he is tenant since long and that the street is used for ingress and egress to the property in occupation of the appellant. It is pleaded that the street was also being used by other residents of the area. It was further pleaded that respondent has no right or interest in the street and at the instance of the Municipal Committee, Panipat he is intending to encroach upon it.
3. The respondent who was on notice in the suit objected to the averments made in the plaint and denied the existence of street at the spot as alleged by the appellant. It was pleaded that site plan is not in accordance with the spot and there is no vacant land between the plots of the parties and rather there exists a wall on the northern side of the plot upto the plot of the appellant which shows that on the eastern side of the plot of the appellant is plot of the respondent and not a street. It was further pleaded that appellant has no locus standi to file the suit as the property is of Wakf Board which has leased out the property and since it has not raised any objection, appellant is precluded from raising the same. It was pleaded that one Sehdev proprietor of S.D. Engineering Works whose property is also shown in the site plan which is submitted by the appellant, has also filed a suit for permanent injunction bearing No. 416 of 1971 in which he had pleaded that this property is part of the street but the suit was dismissed and in that suit a Local Commissioner was appointed to inspect the site and to inquire whether the suit property is a passage or not and on the basis of the evidence a categoric finding was returned that spot is not a public street. It was further pleaded that thereafter the respondent had raised the northern wall which was demolished by one of the witnesses in suit bearing No. 416 of 1971 and the matter was reported to the police. Thereafter civil suit titled as Haryana Electrical Wood Works v. Darshan Singh, was filed by one Ravinder Nath in the year 1982 claiming that this property was a street but the same was also dismissed vide judgment and decree dated 13.1.1988. The appeal against the same was also dismissed. It is pleaded that the suit has merely been filed to harass him. Third suit was also filed by brother of Rajinder Nath with a plea of injunction and showing that suit property as a passage and the injunction application was also dismissed in the suit by the Trial Court on 14th December, 1986 and it is after the dismissal of that injunction application that the present suit has been filed.
4. The parties went to trial on the following issues:
1. Whether the suit property is being used as passage, as alleged? OPP
2. Whether the defendant is the lessee in possession of the suit property? OPD
3. Whether the suit is liable to be dismissed? OPD
4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
5. Whether the plaintiff suppressed the true and material facts from the court and is not entitled for any discretionary relief? OPD
6. Relief.
The learned Trial Court thereafter concluded that there was conclusive finding returned in the prior suits to the effect that the disputed area which is subject matter of the present suit is not a public street and concluded as such in the present suit as well. Hence, the suit was dismissed. In appeal before learned First Appellate Court, the findings of the learned Trial Court were affirmed.
5. In regular second appeal, learned Counsel for the appellant has contended with reference to the report of the Local Commissioner who was appointed during the proceedings before the Trial Court that he has prepared a site plan which shows the existence of a street at the point which is claimed by the plaintiff-appellant. It is contended that no objection to the report of the Local Commissioner was filed and he was not got examined by the respondent. In this view of the matter Courts ought to have decreed the suit of the plaintiff-appellant as it was further pleaded that in any eventuality the suit property belongs to the Wakf Board and the respondent had no right or authority to alter or raise any construction by blocking the street.
6. On the other hand learned Counsel for the respondent contended that conclusive findings have already been determined in the prior suits pertaining to this very area and it was held by all the Courts that no street exists and in this view of the matter the prayer of the appellant cannot be granted. It was thus pleaded that the findings recorded by both the Courts below are just and appropriate.
7. I have heard learned Counsel for the parties and have perused the impugned judgments.
8. The question that has been raised in the present appeal to challenge the orders of both the Courts below is without any merit for the simple reason that pure question of facts regarding the existence of street have been determined by the Courts below and there is ample material on record that prior to the filing of the present suit, the appellant had borne the burnt of several other civil suits in which a categoric finding was returned that there does not exist any public street at the spot and this finding has become final even though the appellant was not a party thereto. But the question still remains that judicial findings regarding this very property have come in existence which findings and the effect whereof have not been off set by the appellant by leading any further independent evidence.
9. It is a settled principle of law that the findings of facts can be interfered with in a regular second appeal only if the same are perverse. Because of the persuasive value of the judgments of the civil Courts rendered in the earlier suits, the findings recorded in the present suit on the basis of the earlier conclusive findings recorded by the Courts, cannot be termed to be perverse. The appellant has not denied the fact that the property in the earlier civil suits was the same as the one which is now in controversy. Therefore, the findings do not warrant any interference. The contention of the learned Counsel for the appellant that the property belongs to the Wakf Board and the respondent has raised any construction on it is also misplaced. The Wakf Board was not a party to the proceedings. It has also not raised any objection regarding any encroachment alleged to have been made by the respondent. Concededly both the appellant and the respondent are tenants under the Wakf Board. In this eventuality, if there is any encroachment which had the impact of effecting the status of the property which has been leased out by the Wakf Board then it was the Board itself who could have made the grievance out of it, but the same has not been done. In so far as the appellant is concerned, his grievance that the alleged construction is likely to block the ingress and egress to his property is concerned the same has already been tested on the basis of findings and have been negated by both the Courts below. There is thus no infirmity in the findings recorded by both the Courts below. Consequently, the appeal being devoid of any merit is hereby dismissed.