RSA No.1053 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1053 of 2010(O&M) Date of decision: 11.3.2010 Sardari Lal & others ......Appellant(s) Versus Gurmeet Kaur ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Padam Jain, Advocate for the appellant. Rakesh Kumar Garg, J. CM No.3121-C of 2010 Application is allowed. Annexure P-1 is taken on record. CM No.3122-C of 2010 CM is allowed subject to all just exceptions. RSA No.1053 of 2010(O&M) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for permanent injunction restraining the defendant-appellants from causing any hindrance and obstruction in cementing the already existing walls as shown in the site plan attached, was decreed. As per the averments made in the suit, the plaintiff and her husband were owners in possession of the house in dispute as detailed in the head note of the plaint. They had purchased plot measuring 5-1/2 marlas from its original owner vide sale deed dated 6.5.2005 and thereafter, constructed a double storey house thereon after getting the site plan sanctioned from the Municipal Committee, Gurdaspur. After raising the construction, the entire house was plastered except the walls on the ground floor shown as AB and on the first floor shown as EF RSA No.1053 of 2010(O&M) 2 towards the street in the site plan. The defendant-appellants had forcibly encroached upon the street in dispute as shown in the site plan. The plaintiff-respondent requested the defendant-appellants many times to remove the encroachment from the street but they refused, on account of which, the plaintiff-respondent was likely to suffer irreparable loss and injury and the house of the respondent was also running the risk of being damaged by seepage and dampness. Hence, the suit. The suit was contested by the defendant-appellants by submitting that the plaintiff-respondent had no right, title or interest in the disputed property which was the private property of the appellants. It was further submitted that the street referred to in the plaint belongs to the appellants and was the private street. It was further submitted that the plaintiff-respondent was not entitled to the relief sought for. Dismissal of the suit was prayed for. On perusal of evidence on record, the trial Court vide impugned judgment and decree dated 12.11.2009, partly decreed the suit restraining the appellants from causing any type of hindrance or obstruction in plastering of the disputed wall by the plaintiff-respondent with a further mandate that while plastering the wall, no damage to the street shown in the site plan shall be caused. However, relief of mandatory injunction sought by the plaintiff-respondent was declined. Not satisfied with the aforesaid judgment and decree of the trial Court, the appellants filed an appeal which was dismissed by the Lower Appellate Court vide impugned judgment and decree dated 8.2.2010. While dismissing the appeal, the Lower Appellate Court observed as under: “A perusal of pleadings of the parties and evidence available on the record would show that the RSA No.1053 of 2010(O&M) 3 appellants though have been raising a rumpus about encroachment upon their land in the even of the wall being plastered by the respondent. They, however, failed to bring any material on record to show how the street claimed by them would be encroached upon by the respondent and how they would have nuisance and disturbance if the walls are plastered. Statement made by appellant, Sardari Lal, DW.1 in his cross examination reveals that his only effort is that he would not allow in plastering of the wall of the house of respondent. Though he has repeatedly stated that by allowing plastering of the wall of two marlas of land belonging to the appellants shall stand encroached upon but no detail of this calculation has been brought forth. Even otherwise, learned trial Court has very clearly stated in the impugned judgment and decree dated 12.11.2009 that the respondent while plastering the wall would not, in any way, cause damage to the street and, if any damage is caused to that street, the respondent shall be liable therefor. The findings recorded by the learned trial Court are found to be absolutely in order, more so, when house of the respondent, constructed at a huge cost, is liable to danger of seepage and dampness in the event of the outer wall being left unplastered.” Still not satisfied, the defendant-appellants have approached this Court through the instant appeal. Learned counsel for the appellants has vehemently argued that no right can be claimed over the land/property of the appellants without RSA No.1053 of 2010(O&M) 4 there being any easmentary right and for the purpose of claiming easement, the same has to be specifically pleaded and proved. In the present case, there are no pleadings by the plaintiff to the effect that she had any kind of easement over the property of the defendant-appellants as laid down by the Indian Easement Act, neither there is any proof and thus, the judgment and decrees of the Courts below are liable to be set aside. On the basis of the arguments, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal: “(a) Whether the findings of the Courts below are perverse and based on non evidence? (b) What is the effect of ignoring the exhibited documents by the parties and the provisions of Indian Easement Act? (c ) Whether any right can be claimed over the neighbour's land or property without there being any easement or in inchoate right? “ I have heard learned counsel for the appellants and perused the impugned judgment and decrees. A perusal of the impugned judgment and decree of the Courts below would show that the argument raised before this Court was not raised by the defendant-appellants before the Courts below and in fact, the onus to prove the issue of maintainability of the suit was upon the appellants and the aforesaid issues were not pressed by the defendant- appellants. Even no such argument was raised before the Lower Appellate Court. The Hon'ble Supreme Court of India has authoritatively laid down in Bachhaj Nahar v. Nilima Mandal and another 2008 JT(13) SC RSA No.1053 of 2010(O&M) 5 255 that a substantial question of law which does not arise from the pleadings of the parties and was not raised before the Courts below cannot be allowed to be raised in the regular second appeal. Moreover, as aforesaid, the appellants have failed to press the issue of maintainability of the suit before the trial Court. Not only this, even on the question whether the plaintiff-respondent was entitled to the relief of permanent injunction or not, no such argument was raised by the appellants and the only argument raised was that if the plaintiff-respondent is allowed to plaster the walls in dispute it would amount to encroachment upon the land of the appellants. The Courts below on appreciation of evidence have recorded a finding of fact that the appellants have failed to bring any material on record to show as to how the street claimed by them could be encroached upon by the plaintiff-respondent, if she is allowed to plaster her walls. Not only this, the Courts below have also directed that while plastering the wall, the plaintiff-respondent would not cause any damage to the street in question. Thus, I find that the substantial question of law as argued by the learned counsel for the appellants does not arise in this appeal which is devoid of any merit. Dismissed. March 11, 2010 (RAKESH KUMAR GARG) ps JUDGE