RSA No.3813 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3813 of 2009 Date of decision: 11.1.2010 Gian Kaur and another ......Appellant(s) Versus Rajinder Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Gagandeep Singh Sirphikhi, Advocate for the appellants. Rakesh Kumar Garg, J. This is defendants’ regular second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff- respondent for permanent injunction restraining the appellants from illegally demolishing the wall in dispute, was decreed and the appellants were restrained from making any Parnala and from fixing any pipe etc. illegally, forcibly and in any manner whatsoever in the disputed wall. In nut shell, the case of the plaintiff-respondent is that he was owner in possession of the shop in dispute. The roof of the shop of the plaintiff was 2 ½ feet high from the building of the defendant-appellants which was on the western side of the shop in dispute and there was no Parnala or pipe for flow of rain water towards the side of the shop of the plaintiff-respondent in the wall AB which was his exclusive property. The defendants had no right, title or interest in the aforesaid wall 'AB', however, the defendants threatened to put a Parnala and install a pipe for flow of rain water in the wall AB but the attempt was foiled. Thus, the defendant- appellants had threatened to interfere in the shop in dispute. Hence, the present suit. RSA No.3813 of 2009 2 Upon notice, the appellants appeared and filed written statement taking various preliminary objections submitting therein that to flush out the rainy water out of the property of the appellant, the disputed Parnala was very much available on the western side of the alleged shop. It was further submitted that the plaintiff has not disclosed the true particulars of his revenue estate and the land mentioned in the alleged sale deed is a part and parcel of public road and the ground underneath the shop in dispute was encroached and thus, the plaintiff who was guilty of suppressing the material facts was not entitled to any relief. On appreciation of evidence, the trial Court held that the height of the roof of the plaintiff was higher than the roof of the property of the appellants and the appellants failed to prove their right of having Parnala over the shop of the plaintiff-respondent and thus, the suit was decreed. In appeal, the Lower Appellate Court also upheld the findings of the trial Court. Still not satisfied, the appellants have approached this Court by filing the instant appeal. Learned counsel for the appellants has vehemently argued that the plaintiff has failed to prove his ownership over the property in dispute and therefore, his suit for permanent injunction cannot be decreed. In support of his argument, learned counsel for the appellant has relied upon judgments of this Court cited as Ganpat and another v. Khiali and others AIR 2004 Punjab and Haryana High Court 110 and Shankar v. Ram Kala and others, 1986 RRR 220. I have heard learned counsel for the appellants. From the pleadings of the parties, it is crystal clear that the appellants have no where disputed the ownership of the disputed wall AB RSA No.3813 of 2009 3 of the plaintiff-respondent. However, the appellants alleged that the land underneath the property of the plaintiff is a public property and the same has been encroached upon by him but no such issue was claimed by the appellants in the Courts below. Moreover, there is no finding against the plaintiff-respondent that plaintiff's shop was constructed over a public street/property. In the absence of any such finding, no such plea can be raised by the appellants. Moreover, admittedly, no action has been taken by the Municipal Committee against the respondent. The appellants have contested the suit against the plaintiff-respondent taking the plea that Parnala in question was already in existence and the same could not be proved by them. The aforesaid concurrent findings of fact recorded on appreciation of evidence, do not suffer from any errors of fact, misreading of evidence, perversity in the process of reasoning or in the conclusions so recorded. Thus, I find no merit in the argument raised by the learned counsel for the appellants. No substantial question of law as raised arises in this appeal. Dismissed. January 11, 2010 (RAKESH KUMAR GARG) ps JUDGE