C. R. No. 4269 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 4269 of 2009 Date of Decision : February 09, 2010 Satnam Singh .... Petitioner Vs. Davinder Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. L. Singla, Advocate for the petitioner. Ms. Amandeep Soni, Advocate for respondents no. 1 to 7. None for respondents no.8 and 9. * * * L. N. MITTAL, J. (Oral) : This is revision petition by plaintiff Satnam Singh under Article 227 of the Constitution of India assailing judgment dated 19.05.2009 (Annexure P-8) passed by learned Additional District Judge, Jalandhar. Plaintiff filed suit for permanent injunction alleging that the defendants intended to dig earth in their land adjoining the land of the plaintiff without leaving lateral support to the property of the plaintiff and it would result in damage to the property of the plaintiff. The plaintiff accordingly sought permanent injunction restraining the defendants from causing any damage to the property of the plaintiff by excavating earth from the adjoining land C. R. No. 4269 of 2009 2 without providing lateral support to the land of the plaintiff. By moving separate application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the plaintiff sought temporary injunction to the same effect till the disposal of the suit. The defendants pleaded that they have already excavated earth from their land and are entitled to use their land in any manner they like. It was also pleaded that the plaintiff can protect his land by raising a supporting wall. Learned Civil Judge (Junior Division), Phillaur, vide order dated 13.02.2008 (Annexure P-6) granted temporary injunction restraining the defendants from digging/escavating earth from their land upto 4 feet adjoining the land of the plaintiff till disposal of the suit. However, learned Additional District Judge, Jalandhar, vide impugned judgment dated 19.05.2009 (Annexure P-8) passed in appeal preferred by the defendants, modified the order of the trial court and restricted the distance to 2 feet instead of 4 feet, to be left un-dug from the land of the plaintiff. Feeling aggrieved, the plaintiff has filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that the defendants cannot dig earth from their land so as to cause damage to the adjoining land of the plaintiff. It was contended that the distance of 4 feet to be left un-dug from the land of the plaintiff, as ordered by the trial court, is reasonable one. On the other hand, learned counsel for the respondents contended that the respondents have right to use their land in any manner they like and it is for the petitioner-plaintiff to protect his land by raising wall around his land. Reliance in support of this contention has been placed on a judgment of this Court in the case of Gajja Singh vs. Mohinder Singh reported as 1993 (Suppl.) Civil Court Cases 325 (P&H). C. R. No. 4269 of 2009 3 I have carefully considered the rival contentions. In so far as judgment in the case of Gajja Singh (supra) is concerned, the same is not applicable in this case because in that case, the trial court, after recording evidence, had recorded a finding keeping in view the nature of the soil that the plaintiff would not suffer any loss, if earth was dug from the adjoining land upto the last inch. In the instant case, however, there is no such material on the record, at this stage. Judgment in the case of Gajja Singh (supra) was a final judgment based on the appreciation of evidence. So, the said judgment is not applicable to the instant case. It is well settled that a person cannot use his property in a manner so as to cause damage to the adjoining property of anybody else. The defendants do have a right to use their land in any manner they like, but not in a manner as to cause damage to the adjoining land of the plaintiff. My right ends where the nose of other person begins. If the defendants are allowed to dig earth upto the depth of 5 feet in their land, it is likely to cause damage to the adjoining land of the plaintiff. Keeping in view all the circumstances, I am of the considered opinion that ends of justice would be met if the defendants leave un-dug land upto 3 feet from the land of the plaintiff during pendency of the suit. It is ordered accordingly. However, nothing observed herein above shall be construed as an expression of opinion on the merits of the suit. February 09, 2010 ( L. N. MITTAL ) monika JUDGE