P&H HC | Presence of a substantial question of law, not a sine qua non for deciding a regular second appeal

Punjab and Haryana High Court

Punjab and Haryana High Court: Sudip Ahluwalia, J. disposed of the matter directing the parties that a disputed land cannot be used by either of them and also stated that a regular second appeal can be accepted without a substantial question of law.

In the present case, a suit was filed by the respondent in the trial court seeking a mandatory injunction for removal of the temporary tin sheds and other obstructions allegedly raised by the appellant (defendant in the suit) on a piece of land which was a wide public land on the western side of appellant’s house. The disputed land was in an area named Madhu Colony, which was different from Sharma Colony where the respondent-plaintiffs house was located. The obstructions on this land caused a hindrance in the respondent’s (plaintiff in the suit) ingress and egress to his house. The Trial Court granted an injunction to the respondent. Appellant challenged the said order in the Court of District Judge, who dismissed his appeal. Thereafter, the present appeal was filed and the same was disposed of by a co-ordinate Bench of this Court in 2010 observing that plaintiff-respondent had no right of ingress and egress for his house through the disputed road, and thus the finding of the lower courts was reversed to that extent. However, the decree of the Courts below directing appellant-defendant to remove encroachment from the disputed road was affirmed. Aggrieved by this decision, respondent filed a Special Leave Petition (SLP) in Supreme Court and the matter was remitted back to this Court directing that it be seen if any substantial question of law arises in the second appeal and then rehear the parties.

Issue: where encroachments on the disputed land are directed to be removed by a Court, would the party directed to remove encroachments, be still entitled to use the said land for ingress and egress from the side gate of his house.

The Court relied on the decision in Pankajakshi v. Chandrika, (2016) 6 SCC 157 where it was held that provisions of the Punjab Courts Act, 1918, which permitted filing of Regular Second Appeals, was operative notwithstanding the restrictive conditions subsequently incorporated by way of amendment of Section 100 of the Code of Civil Procedure in 1976. Consequently, the requirement of framing any substantial question of law was no longer a sine qua non for deciding a Regular Second Appeal by this Court

It was opined that a substantial question of fact and law had arisen in this case. The Court noted that respondent-plaintiff had no case that he was using the disputed area for ingress and egress on account of any Easementary right, or even by way of ‘easement of necessity’. There was no evidence to the effect that the side gate of respondent’s house was constructed with the approval of municipal authorities.

Thus, the appeal was disposed of directing the appellant to remove tin-shed and other man-made structures raised by him on the disputed land; and the respondent was also directed to not use the disputed land for ingress and egress unless expressly authorized by the local authorities. Further, the respondent was granted liberty to demolish the unauthorized concrete structures on the disputed land, in case the same were not removed by the appellant.[Mohan Lal v. Baldev Raj, 2019 SCC OnLine P&H 698, decided on 30-05-2019]

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