RSA No.14 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.14 of 2010 (O&M) Date of decision: January 19, 2010. Surinder Singh ...Appellant(s) v. Bharat Bhushan ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri IPS Kohli, Advocate, for the applicant-appellant(s). Rakesh Kumar Garg, J. (Oral): CM No.154-C of 2010 For the reasons mentioned in the application, the order dated 8.1.2010 is recalled and the appeal is restored to its original number. Civil Misc. application stands disposed of. RSA No.14 of 2010 (O&M) This is defendant's second appeal challenging the judgment and decree of the lower appellate court whereby mandatory injunction has been issued against him to remove the lintel placed on the wall in dispute without permission of the plaintiff and to remove the encroachment from the street in question. As per the averments, plaintiff/respondent filed a suit for permanent injunction restraining the defendant/appellant from raising the RSA No.14 of 2010 -: 2 :- wall shown in red colour in the site plan attached with the suit which was exclusively owned by him and was part and parcel of his house and for mandatory injunction directing the appellant to remove the lintel placed on the said wall of the bath room illegally constructed without the permission of the plaintiff/respondent and to remove the encroachment from the street measuring 48' x 9' abutting on the western side of the house bearing No.443-B, VPO Dakoha, Tehsil and District Jalandhar. The suit was contested by the defendant raising various grounds. It was denied that he had put lintel of his latrine and bath room on the said wall which is exclusively owned by him. It was alleged that the said wall was exclusive ownership of the defendant regarding which he had filed a separate suit. The trial court on appreciation of evidence and after hearing the counsel for the parties, decreed the suit of the plaintiff-respondent for permanent injunction but dismissed the suit for mandatory injunction. On appeal, the lower appellate court accepted the plea of the plaintiff/respondent and also decreed his suit for mandatory injunction. Feeling aggrieved, the defendant has filed the present appeal challenging the impugned judgment and decree dated 16.10.2009 passed by the Additional District Judge, Jalandhar. In this appeal, learned counsel for the appellant has argued that in the absence of any plea by the plaintiff/respondent of any damage or harm accruing to him by the construction of the appellant on the wall of the plaintiff, the suit was not maintainable and, therefore, the same was liable to be dismissed. Elaborating further, learned counsel for the appellant has argued that the plaintiff/respondent was not entitled to the mandatory RSA No.14 of 2010 -: 3 :- injunction especially in view of the fact that the plaintiff had raised the issue only after the construction of the lintel in question and therefore, no case was made out for issuance of a decree for mandatory injunction for demolition of the same. In support of his case, learned counsel for the appellant has relied upon two judgments of this Court in Bishan Dass Saini & Ors. v. Roshan Lal and Ors., 1990(2) LJR 200 and Mohinder Singh & Ors. v. Ram Murthi, 2004(2) Cur. L.J. 355. On the basis of the aforesaid judgment, learned counsel has submitted that the following substantial question of law arises in this appeal:- “Whether the suit filed by the plaintiff/respondent was not maintainable?” I have heard learned counsel for the appellant and perused the pleadings. Admittedly, the wall in question belongs to the plaintiff- respondent. From the evidence on record, the appellant has failed to show that he has any right over the wall on which he has admittedly put his lintel of the bath-room. In view of the aforesaid findings of fact, which could not be controverted, I find no merit in this appeal. The judgments relied upon by learned counsel for the appellant are not applicable in the facts of the present case. In Bishan Dass Saini's case (supra) the wall in question was joint of the parties whereas in Mohinder Singh's case (supra), the plaintiff failed to establish his legal rights in respect of the property in dispute and in those circumstances the court held that the plaintiff was not entitled to seek removal of wall in RSA No.14 of 2010 -: 4 :- question. No question of law, much less substantial question of law, arises in this case for consideration of this Court. Dismissed. January 19, 2010. [ Rakesh Kumar Garg ] kadyan Judge