1 RSA No. 4340 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ---- R.S.A. No. 4340 of 2008(O&M) Date of Decision: 24.4.2008 Budh Ram --- Appellant Versus Jiwan Sharma --- Respondent CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL ---- PRESENT: Mr. Arun Jindal, Advocate for the appellant. ---- AJAY KUMAR MITTAL, J. A suit for permanent injunction filed by the respondent-plaintiff was decreed by the trial court. The trial court decree having been confirmed by the first appellate court, it is the defendant who is now in second appeal before this Court. The plaintiff filed a suit for permanent injunction pleading, inter alia, that he was owner in possession of a double-storey house shown with letters ABCD and in red colour in the site plan attached with the plaint, Exhibit P1. It was pleaded that new construction was made over the site of the house by demolishing the old house but wall A to B was retained as it was, and the whole construction of the house was on the said wall which was the exclusive ownership of the plaintiff. On the northern side of the said wall, there was a plot of the defendant. The defendant was threatening to demolish the said 2 RSA No. 4340 of 2008 wall illegally and without any right. The plaintiff, thus, prayed for a decree for permanent injunction restraining the defendant from interfering and demolishing the wall A to B. The defendant, in his written statement, came up with a different stand and pleaded that the plaintiff had not depicted the true facts as well the nature of the wall in question. The said wall was the joint ownership of the parties. The plaintiff had himself put the roof of his house on half portion of the wall and the remaining thereof was being used by the defendant. The defendant had raised construction on his own property and also put the beam over the wall which was 4 inches wide, to put a considerable weight on the disputed wall, which was an old one and required repairs. The defendant appended along with the written statement a copy of the sale deed, in support of his plea that the wall in question was jointly owned by the parties. On appraisal of the evidence on record, the trial court recorded a finding that the wall in question was in exclusive possession of the plaintiff and the defendant had no concern with the same. It was further held that the defendant had no right to demolish the wall in any manner or to interfere in the possession of the plaintiff of the said wall, shown with letters A to B in the site plan, Exhibit P-1. The suit was consequently decreed by the trial court by judgment and decree dated 18.9.2006. In the appeal carried by the defendant, the findings returned by the trial court were affirmed and the appeal was dismissed by the lower appellate court vide judgment and decree dated 1.2.2008. I have heard learned counsel for the appellant and have gone through the record with his assistance. 3 RSA No. 4340 of 2008 Learned counsel appearing for the appellant submitted that the findings recorded by the courts below were wrong and illegal and this Court should record an independent finding after re-appreciating the evidence but this submission of the learned counsel cannot be accepted as re-appreciation of the evidence to differ with conclusion of the courts below is not permissible in view of the impediment contained in the provisions of Section 100 of the Code of Civil Procedure. In any case, the findings recorded by the courts below are based on the oral as well as the documentary evidence and also on the sound reasoning. No illegality or perversity could be shown by the counsel in the said findings so as to persuade this Court to interfere therewith in second appeal. No substantial question of law arises nor has any been pointed out by the counsel, for consideration of this Court. In view of the above, there is no merit in the appeal and the same is dismissed in limine. (AJAY KUMAR MITTAL) April 24, 2009 JUDGE *rkmalik*