RSA No.4986 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4986 of 2009 (O&M) Date of decision: 7.7.2010 Kamal ......Appellant(s) Versus Hemraj and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. J.P. Sharma, Advocate for the appellant. Rakesh Kumar Garg, J. This appeal has been preferred by defendant No.3-Kamal, challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for permanent injunction has been decreed. Brief facts as pleaded by the plaintiff-respondent in his suit are that he is owner in possession of a Haveli situated in Mohalla Nalapur, Narnaul. He constructed rooms after getting sanction from the Municipal Committee in the year 1988. In the year 1996, cracks developed in the northern wall of the plaintiff's room and therefore, some repairs were required. The plaintiff constructed 2 ¾ feet high 'Mundare' on the wall. It was also alleged that the rainy water of the Haveli was discharged in the street through the hole towards the northern side. It was further alleged that there are two ventilators of the room of the plaintiff's Haveli towards the northern side. The grievance of the plaintiff was that the defendants had demolished the hole pipes and the Mundare and they were further bent upon to interfere in discharge of the rainy water towards the Northern side. Hence, the present suit. Defendants No.1 and 3 filed joint written statement alleging RSA No.4986 of 2009 (O&M) 2 that the plaintiff had not given the correct boundaries in the site plan. It was further pleaded that the site which is being alleged by the plaintiff as street was in fact a part of the Nohra which is on rent with the defendants since 1.4.1957. It was alleged by them that they were in possession of said Nohra since the time of their forefathers. After the death of their father, they had executed a rent note in favour of its owner Hazari Lal and Lal Chand. It was further alleged that there was no street towards the northern side of the plaintiff's house. It was averred that the plaintiff purchased the site of his house from one Ram Sarup Saini but he was withholding the sale deed intentionally. It was denied that the northern wall of the room of the plaintiff developed some cracks and therefore, the repairs were effected. It was also denied that the ventilators and the hole pipes were constructed in the year 1988. Besides, some legal objections were also raised. Remaining defendants filed their joint written statement taking the identical pleas as raised by defendants No.1 and 3. In addition, it was alleged by them that the Nohra was taken on rent, vide rent note dated 1.4.1957 @ Rs.2 per month which was later on enhanced to Rs.2.50 per month w.e.f 26.8.1984. Plea of limitation was also raised. . The plaintiff filed replication controverting the averments of the defendants and reiterated the stand taken in the plaint. From the pleadings of the parties, the following issues were framed: “1. Whether the plaintiff is entitled to the injunction as prayed for?OPP 2. Whether the suit property is a joint street, as alleged? OPP 3. Whether the suit is not maintainable in the present RSA No.4986 of 2009 (O&M) 3 form? OPD 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 6. Whether the defendants are entitled to special cost? OPD 7. Whether the plaintiff has no cause of action? OPD 8. Relief.” On appreciation of the evidence, the trial Court came to the conclusion that towards the northern side of the Haveli of the plaintiff, there existed a street as reflected in the site plan Ex.P1 and the ventilators of the plaintiff's house open towards that street. The rainy water of the plaintiff's Haveli was also discharged towards the northern side through the hole, and the defendants had no right to obstruct the hole as well as ventilators and as a result of the aforesaid findings, the suit of the plaintiff was decreed and a decree for permanent injunction restraining the defendants from obstructing the ventilators and the Mori (hole) of the plaintiff's Haveli which opens towards the northern side in the street as reflected in the site plan Ex.P1 was passed. Further, the defendants were restrained from demolishing the Chajji of the plaintiff's towards the street. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendants filed an appeal. Along with this appeal, an application under Order 41 Rule 27 CPC was also filed which was contested by the plaintiff-respondent. The aforesaid application was dismissed by the Lower Appellate Court observing that the counsel for the applicant-appellant had failed to show that the additional evidence sought to be produced on record was essential for just decision of the controversy RSA No.4986 of 2009 (O&M) 4 between the parties as the subject matter in the earlier civil suit and the present suit was different and there was no merit in the aforesaid application. On merits also, after reappraising the evidence, the Lower Appellate Court affirmed the findings of the trial Court. The relevant observations of the Lower Appellate Court read as follows: “In the light of statements of PW1 to PW7 and documents Ex.P1, Ex.P2, Ex.P3, Ex.PW6/A and Ex.PA to Ex.PE and mark-A and admission of DW4 Jiwan Ram Saini, site plan Ex.DW6/A, statement of DW6 Kanwal Singh, it is proved that there exists a street in Northern side of the Haveli in dispute. The ventilators of the house of the plaintiff opens in the street. The plaintiff constructed a Mundair on northern side of the Haveli in dispute which is demolished by the defendants without any rhyme or reason. There is no cogent and convincing evidence on behalf of the defendants to prove that there is no street between the house of the plaintiff and defendants. The site in dispute is part and parcel of house of defendants. He also failed to prove that there is no ventilator in the house of the plaintiff towards the site in dispute and the rainy water does not fall in the site in dispute. Whereas the plaintiff succeeded to prove that rainy water of the house of the plaintiff falls in the site in dispute and there are ventilators of the house of the plaintiff towards the site in dispute which further goes to prove that the disputed site is a street commonly used by the plaintiff and defendants. So, the learned lower court rightly held and RSA No.4986 of 2009 (O&M) 5 observed that there is a common street between the houses of the plaintiff and defendants which is being used by the parties to the suit. The defendants have no right, title or interest to interfere in the use of the plaintiff of the disputed site as common street and closing ventilators and Morri of the Haveli in dispute opening on northern side as shown in site plan Ex.P1 and defendants have also no right to demolish the Chhaji of the Haveli in dispute. So, findings of the learned lower court on all the issues under adjudication are affirmed.” Still not satisfied, the defendant-Kamal has filed the present appeal raising the following substantial questions of law: “i) Whether the application under order 41 Rule 27 CPC filed by the appellants before Ld.Lower Appellate Court is liable to be allowed? ii) Whether both the courts below rightly appreciated the evidence on record? iii) Whether a person not coming with clean hands is entitled for decree of permanent injunction?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. Both the Courts below on appreciation of evidence have recorded a finding of fact that there exists a street between the houses of the plaintiff and defendant, as per site plan Ex.P-1 and the appellant has failed to prove that the site in dispute was part and parcel of their house. It was also found that there were ventilators in the house of the plaintiff towards the site in dispute and the rainy water of the house of the plaintiff falls in the site in dispute and the defendants have no right or interest to RSA No.4986 of 2009 (O&M) 6 interfere in the use of the plaintiff of the disputed site as common street and closing ventilators and hole of the Haveli in dispute, opening on northern side as shown in the site plan Ex.P1 and further, the defendants have also no right to demolish the Mundare/Chhaji of the site in dispute. The findings recorded by the Courts below are essentially findings of fact. Learned counsel for the appellant was unable to point out any material evidence on record which has been ignored by the Courts below while recording the aforesaid findings. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. CM No.14710-C of 2009 Since the appeal is being dismissed on merits, application for condonation of delay does not survive. July 7, 2010 (RAKESH KUMAR GARG) ps JUDGE