Regular Second Appeal No. 1413 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1413 of 2008 Date of decision : January 18, 2010 Indu Lamba ....Appellant versus Mani Ram Bishnoi and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. PK Ganga, Advocate, for the appellant Mr. Sanjeev Sharma, Senior Advocate with Mr. Ajay Singh, Advocate, for respondent no. 1 Mr. Manish Bansal, Advocate, for respondent no. 2 L.N. Mittal, J. (Oral) Defendant no. 1 Indu Lamba is in second appeal before this Court. Respondent no. 1 Mani Ram Bishnoi, Advocate filed suit against the appellant and respondent no. 2 seeking various reliefs i.e. mandatory injunction (a) to lower the level of house of defendant no. 1 from 2' – 4” to 1' – 6” from the ground level; (b) to lower height of front wall from 5 ft to 3' – 10” from DPC; (c) to lower the level of ancillary zone (drive way) from 1' - 10” to 1' – 6” and (d) to pay half cost of construction Regular Second Appeal No. 1413 of 2008 -2- of common wall. The plaintiff and defendant no. 1 are neighbours. They have constructed their houses on plots allotted by Haryana Urban Development Authority (HUDA-defendant no. 2). The plaintiff also sought injunction restraining HUDA from issuing completion certificate to defendant no. 1. Learned Civil Judge (Senior Division), Hisar vide judgment and decree dated 30.11.2004 partly decreed the suit regarding reliefs (c) and (d), granting amount of Rs 25737/- as half cost of common wall. First appeal preferred by defendant no. 1 has been dismissed by learned Additional District Judge (Fast Track Court) Hissar vide judgment and decree dated 4.2.2008. Feeling aggrieved, defendant no. 1 has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant referred to testimony of Ran Singh Junior Engineer of HUDA DW1. He has stated about compounding made by HUDA defendant no. 2 regarding violations mentioned at (a) and (b) above. However, the courts below have not granted any relief regarding said violations. Relief has been granted regarding violation mentioned at (c) and regarding payment of half cost of common wall. Consequently, the aforesaid contention is completely irrelevant and without substance. On the other hand, learned counsel for defendant no. 1 contended that on account of higher level of drive way of house of defendant no. 1, there is seepage of water thereby damaging the common wall and causing nuisance to the plaintiff. The said plea has been upheld by the courts below after appreciating evidence. There is no perversity or Regular Second Appeal No. 1413 of 2008 -3- illegality in the said finding of the courts below. Learned counsel for the appellant next contended that learned lower appellate court has observed in paragraph 15 of the judgment that defendant no. 1 would pay only half cost of the common wall at present and would pay remaining amount when the appellant would construct second storey of her house but inspite of this observation appeal has been dismissed by lower appellate court. Appellant is given liberty to move the lower appellate court for clarification on this aspect and the lower appellate court shall pass appropriate orders in accordance with law without feeling handicapped by the instant order which shall not be a bar to the passing of appropriate order by the lower appellate court regarding the said aspect of the case. For the reasons recorded hereinabove, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination by this Court in the instant second appeal. The appeal is accordingly dismissed. ( L.N. Mittal ) January 18, 2010 Judge 'tiwana'