RSA No.302 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.302 of 2009 Date of decision: 4.10.2010 Piara Lal @ Piare Lal ......Appellant(s) Versus Kewal Krishan and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.S. Gill, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) Charan Dass (predecessor-in-interest of the appellant and proforma respondent-Om Parkash) filed a suit for mandatory injunction directing the defendant-respondent to remove the roof at the 1st floor from the wall CD shown red in the plan attached of the houses of the plaintiff. It was averred in the suit that the plaintiff-Charan Dass was the owner of house No.WA-304, Jaura Gate, Jalandhar and defendant-Kewal Krishan was the owner of house No.WA-303. These two houses adjoin each other and were separated by the wall CD shown in the site plan. It was alleged that the aforesaid wall exclusively belonged to him. The suit was contested by the father of the defendant claiming the said wall to be common. In that suit, it was held that he could rest the roof of his house on the ground floor on the wall AB but he had no right to make use of the wall CD on the 1st floor as the said wall exclusively belong to the plaintiff. Accordingly a decree was granted requiring him to remove the support from the wall CD. The wall CD has already been held to be exclusive ownership of the plaintiff vide decree of the Sub Judge which was affirmed by Shri Narinder Singh, ADJ, Jalandhar, in appeal filed by Dewan Chand. Said finding between the parties have become final. In execution RSA No.302 of 2009 2 of the decree referred to above the roof was removed by Dewan Chand, father of the defendant, from wall CD after obtaining 15 days' time from the court. The plaintiff has gone to Dera Beas where he stayed for about a month and in his absence, the defendant wrongly and illegally and without consent of the plaintiff has constructed a roof on the 1st floor of the house bearing No.WA 303 and rested the lentil on the wall CD which he has no right. The defendant was requested to remove the roof and support of roof from the wall CD from the 1st floor, but he has refused to do so. Hence this suit. Upon notice, the defendant appeared and filed written statement submitting therein that the construction was raised in the presence of the plaintiff who had consented for the same in the presence of respectables of the locality. It was further averred that the entire wall AB and CD was the common wall between the parties and the plaintiff had no exclusive right on any portion of the wall. Even otherwise the plaintiff consented to the construction raised by the defendant in the presence of respectables and the plaintiff remained present throughout for the period during which construction was raised. Rests of the averments were denied and dismissal of the suit was prayed for. The trial Court decreed the suit and directed the defendant- respondent to remove the lintel from the wall mentioned in the site plan as the construction was raised without any consent of the plaintiff. The entire wall in question ABCD was held to be common wall of the parties. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the Lower Appellate Court which was accepted. While accepting the appeal, the Lower Appellate Court observed as under: “From the entire evidence led by the parties, as well as RSA No.302 of 2009 3 from the cross examination of the plaintiff-/respondent it is proved on the file that defendant/appellant has chiseled the original wall to the extent of 4 inches width and raised construction of new all wall in his land with the consent of the plaintiff/respondent and the plaintiff/respondent is estopped from claiming the relief of mandatory injunction for demolishing the said wall. Moreover evidence has come on the file that the defendant-appellant has not even used half portion of the common wall. As per previous litigation between the parties, neighbourer was given the right to raise construction on the party wall with the consent of the other neighbour, which has been so complied by the defendant/appellant in the case in hand and as such the plaintiff/respondent is not entitled to any relief of mandatory injunction and the learned lower court has committed an error in deciding this issue in favour of the plaintiff/respondent and against the defendant as such findings of the learned lower court on issue No.1,2 and 4 are reversed.” Still not satisfied, the appellant, who is legal representative of the plaintiff, has filed the present appeal. I have heard learned counsel for the appellant and perused the impugned judgment and decree of the Lower Appellate Court. Counsel for the appellant contends that in totality of the circumstances and considering the whole evidence, the finding recorded by the Lower Appellate Court that there was a consent of the appellant while raising the wall, is erroneous. RSA No.302 of 2009 4 The contention raised by the appellant does not raise any substantial question of law. The First Appellate Court recorded a finding of fact on appreciation of evidence adduced by the parties on record. It is well settled that if on consideration of some evidence, if possible view has been taken by the Lower Appellate Court, the same shall not be substituted by this Court while exercising its jurisdiction under Section 100 CPC and this Court cannot be converted as a third dias for trial. No substantial question of law arises. Thus, I find no merit in this appeal. Dismissed. October 4, 2010 (RAKESH KUMAR GARG) ps JUDGE