R.S.A. No. 296 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 296 of 2009 (O&M) Date of Decision : 16.01.2009 Bhag Singh and another ....Appellants Versus Subhash Chander Jhanji ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. H.P.S.Ghuman, Advocate for the appellants. ..... MAHESH GROVER, J. This regular second appeal is directed against the judgments of the learned trial Court dated 22.2.2007 and the first Appellate Court dated 7.11.2007. The plaintiff/respondent filed a suit for mandatory injunction directing the appellants/defendants to remove the construction of two rooms shown by letters DGJI and shown in red colour in the plan attached with the plaint which had been illegally raised on the wall ED of his residential house and to remove the latrine shown by letters KLMN built by the appellants adjacent and adjoining to the house of the respondent and for permanent injunction restraining the appellants from raising further construction as detailed in the head-note of the plaint. The plaintiff/respondent pleaded that he was the owner in possession of the residential house which was his ancestral property R.S.A. No. 296 of 2009 (O&M) -2- and out of the said residential house, portion shown by letters CDEF is without roof and there exists two windows, three water spouts, one door in the wall ED and the same have been closed by him temporarily due to safety measures. It was then pleaded that adjoining to the site shown in red colour in the plan attached, there exists a kacha passage 8 feet wide shown in brown colour. The appellants had occuplied the site shown in blue colour in the plan illegally regarding which he had filed a civil suit bearing No.184 of 10.3.1993 against the Municipal Committee, Bassi Pathana which was decided on 17.5.1995. One of the appellants while appearing as his own witness had admitted the existence of the site shown in red colour and the residential house shown in yellow colour in the site plan belonging to the respondent but about four months back they had raised illegal construction of two rooms on wall ED of the house of the respondent without any right, in his absence, which requires to be removed. They had also built an open manual latrine at the points shown by letters KLMN in the plan about four months ago which was just adjacent and adjoining to the house of the plaintiff/respondent. The appellants, who contested the suit, pleaded that the respondent had no connection with the property in dispute which was owned by Surjit Kaur, appellant No.2 herein and who is in possession of the same for the last more than 20 years and had made construction thereon for the last 15 years. The property had been purchased from the custodian and an amount of Rs.30,000/- and Rs.15,000/- had been paid to the department in lieu thereof. The learned trial Court framed the following issues :- R.S.A. No. 296 of 2009 (O&M) -3- 1. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Relief. Upon appraisal of the evidence before it, the learned trial Court came to the conclusion that the respondent was entitled to a decree of mandatory injunction and decreed the suit. In appeal, the findings of the learned trial Court were affirmed by the first Appellate Court which has resulted in the filing of the present regular second appeal. Learned counsel for the appellants while assailing the findings of the Courts below contended that the impugned judgments were erroneous as the respondent had not shown that the property was ancestral even though he had pleaded so. I have heard the learned counsel for the appellants and have perused the impugned judgments. The dispute centers around the illegal construction which has been raised and also pertains to an open latrine which the appellants have constructed. It nowhere reflects about the status of the property being ancestral or otherwise. There is concurrent finding of fact being recorded by the Courts below regarding the existence of R.S.A. No. 296 of 2009 (O&M) -4- structures which are causing nuisance to the respondent. The findings recorded by the Courts below, which are based on the evidence, cannot be termed to be perverse to warrant interference in the regular second appeal especially when no substantial question of law has been shown to have arisen. Consequently, the appeal is devoid of any merit and is dismissed on merit as well as on the point of delay. 16.1.2009 (MAHESH GROVER) JUDGE dss