R.S.A. No. 4304 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4304 of 2008 (O&M) Date of decision: 24.3.2009 Banwari Lal Saini ....Appellant Versus Lilu Ram Saini and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Amandeep Singh, Advocate, for Mr. G.S. Hooda, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 12837-C of 2008 This is an application under Section 149 of the Code of Civil Procedure for making good the deficiency in Court fee. For the reasons stated in the application, C.M. is ordered to be allowed. R.S.A. No. 4304 of 2008 This regular second appeal is directed against the judgments and decree dated 26.10.2006 and 12.6.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant seeking damages and injunction against the defendant/respondents stands R.S.A. No. 4304 of 2008 (O&M) -2- dismissed. The plaintiff brought a suit for permanent and mandatory injunction on the plea that the defendant/respondents be restrained from digging holes next to the property of the plaintiff, and also pay the damages for the loss caused. The suit was contested by taking a plea, that earlier the suit property, and residential house of the defendants were owned by father of defendant No. 1 namely, Bhana Ram. Whereas defendants No. 1 and his brother namely, Ishwar Singh used to live together along with their father. The father of defendant No.1 separated him and his brother Ishwar Singh in June, 1980, and the suit property came to the share of Ishwar Singh and property existing in the southern side of the suit property came to the share of defendant No. 1. After partition, defendant No.1 raised construction of his separate wall having 14” breadth and thereafter raised construction of barrack for keeping cattle. After six months of purchasing the land, the plaintiff raised his construction by constructing his separate wall having 9” breadth, and three rooms,of mud and cement. After separation, the house depicted in letters ABCD was given to defendant No. 2 and defendant No. 1 along with defendant No. 3 started residing in the portion EFGH shown in the site plan in the yellow colour. In June, 2004, defendant No. 1 removed the construction of wall A-D and used the said bricks for the purpose of raising construction in another plot, and thereafter planted fruit trees in courtyard, 4-5 feet R.S.A. No. 4304 of 2008 (O&M) -3- away from the suit property. The defendant No. 1 denied the digging of foundation of the wall existing at the spot. It was pleaded that damage was caused to lowlying plot belonging to one Smt. Nangi, which was about 1 ½ feet below the street level. During rainy season the water gets collected in the said plot and the damage was, in fact, due to collection of water in lowlying plot. The learned Courts below on appreciation of evidence recorded a concurrent finding of fact that damage to the property of the plaintiff was, in fact, caused due to the lowlying plot and not on account of act of the defendant/respondents and dismissed the suit. The learned counsel for the appellant contends that the apeal raises following substantial questions of law: - “1. Whether the evidence led by the plaintiff could be ignored without assigning any reason? 2. Whether the learned Courts below could rely upon report Ex. DW-4/A?” In support of substantial questions of law, the learned counsel for the appellant contends that the evidence brought on record by the plaintiff shows the damage caused by the respondent/defendants to property of plaintiff has been ignored without basis. It is also the contention of the learned counsel for the appellant that report Ex. DW- 4/A was not an authenticated document to be read in evidence. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The learned Courts below on appreciation of evidence i.e. evidence led by the plaintiff as well as defendant/respondents, have recorded concurrent finding of fact that the R.S.A. No. 4304 of 2008 (O&M) -4- damage to the property was not caused by the defendant/respondents and that the plaintiff was not entitled to injunction and damages. The judgments passed by learned Courts below have considered the evidence led by the plaintiff/appellant, and on appreciation of evidence, findings against plaintiff/appellant have been recorded. The plea that Ex. DW-4/A was not authenticated document also cannot be sustained, as report Ex. DW-4/A was duly proved by examing the author of the report. The substantial questions of law raised do not arise in this appeal. No merit. Dismissed. (Vinod K. Sharma) Judge March 24, 2009 R.S.