R. S. A. No. 3588 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3588 of 2006 Date of Decision : May 14, 2010 Om Parkash and others .... Appellants Vs. Ishwar Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. D. Singh, Advocate for the appellants. Mr. Atul Gaur, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendants having remained unsuccessful in both the courts below. Plaintiff-respondent Ishwar Singh filed suit for permanent injunction restraining the defendants from interfering in peaceful possession of the plaintiff over the disputed property. Plaintiff also sought injunction restraining the defendants from raising construction over the wall ABC shown in site plan Ex.P-1 and the door shown by letter `P' and from placing lintel or wooden battens on wall ABC. R. S. A. No. 3588 of 2006 2 The plaintiff claimed that he is owner in possession of the house depicted in green colour in site plan Ex.P-1 and walls AB and BC are his exclusive walls and defendants have no right to place their lintel or wooden battens on the said walls. The defendants have pleaded that the disputed walls AB and BC are joint walls of the parties. The defendants also alleged that portion towards west of wall AB and some more portion towards north thereof is thoroughfare vesting in Gram Panchayat. Learned Civil Judge (Junior Division), Jhajjar, vide judgment and decree dated 16.05.2005, decreed the plaintiff's suit restraining the defendants from interfering in disputed wall ABC and from putting wooden battens, lintel etc. thereon. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Jhajjar, vide judgment and decree dated 05.06.2006. Feeling aggrieved, the defendants have preferred the instant second appeal. Learned counsel for the appellants emphatically contended that portion shown in yellow colour in site plan Ex.A-9, annexed with the appeal herein, is thoroughfare vesting in Gram Panchayat and therefore, plaintiff has no right in wall AB because the plaintiff has been ordered to be evicted from the said portion. However, dispute regarding ownership of the said yellow portion is separately pending between plaintiff and Gram Panchayat. In the instant case, the dispute is only regarding wall AB and wall BC. Learned counsel for defendants-appellants submitted that defendants have R. S. A. No. 3588 of 2006 3 constructed their own wall parallel to wall BC and therefore, wall BC is not now in dispute. As regards wall AB also, there is concurrent finding by both the courts below that the said wall AB is exclusive wall of the plaintiff. Alleged eviction of plaintiff from the portion shown in yellow colour in site plan Annexure A-9 would have no impact on the instant suit because according to defendants' version, wall AB is joint wall of the parties. The question would, therefore, be only whether wall AB is exclusive wall of the plaintiff or joint wall of the parties. Consequently, alleged eviction of the plaintiff from the adjoining yellow portion depicted in site plan Annexure A-9 would have no bearing on the ownership of wall AB. In paragraph 8 of its judgment, learned lower appellate court has observed that counsel for the appellants, after seeking instructions from his clients, conceded half-heartedly that defendant-appellants have raised parallel walls adjoining walls AB and BC. It is thus apparent that defendants have themselves raised their own wall parallel to wall AB also. This circumstance further strengthens the finding of the courts below that wall AB is also exclusive wall of the plaintiff. In view of the aforesaid, nothing survives for determination in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Learned counsel for the appellants contended that the lower appellate court R. S. A. No. 3588 of 2006 4 has not discussed the evidence and therefore, substantial question of law arises for determination in this appeal. Reliance in support of this contention has been placed on five judgments of Hon'ble Supreme Court namely Rajeshwari vs. Puran Indoria reported as (2005) 7 Supreme Court Cases 60, Ponnusamy vs. Karuppanna Mudallar (Dead) by LRs and others reported as (2005) 12 Supreme Court Cases 477, Phool Pata and another vs. Vishwanath Singh and others reported as (2005) 6 Supreme Court Cases 40, State of Punjab vs. Mohinder Singh reported as (2005) 3 Supreme Court Cases 702 and Hero Vinoth (Minor) vs. Seshammal reported as (2006) 5 Supreme Court Cases 545. However, in view of observation by lower appellate court in paragraph 8 of the judgment, no further discussion of the evidence was required. The finding of the courts below that plaintiff is exclusive owner of the disputed wall AB and wall BC cannot be said to be erroneous or perverse so as to give rise to substantial question of law for determination in second appeal. The appeal is without any merit and is accordingly dismissed. May 14, 2010 ( L. N. MITTAL ) monika JUDGE