RSA No.3613 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3613 of 2010 (O&M) Date of decision: 10.9.2010 Mangat Singh ......Appellant(s) Versus Karambir Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ajay Kumar Gupta, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) CM No.10668-C of 2010 Application is allowed subject to all just exceptions. RSA No.3613 of 2010 This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby the appeal filed by the defendant-respondents has been accepted partly and judgment and decree of the trial Court has been modified by holding that direction of the trial Court to the defendants for removal of girder and stones from the disputed wall was not warranted and accordingly the decree of the trial Court to that extent has been set aside. Briefly stated, the plaintiff filed suit for mandatory injunction to the effect that he is owner-in-possession of plot Nos.516 and 525 and had constructed his house thereupon at his own expenses, whereas houses of defendants have been constructed upon plot Nos.517 and 524 and defendants No.1 and 2 are father and son and are residing jointly; RSA No.3613 of 2010 (O&M) 2 defendants are strong headed persons and have no respect for the law of the land; that plaintiff has already constructed his house which has been shown in site plan in green colour and marked with letter A B C D; that defendants have not constructed any wall adjoining the wall “BC” and unauthorisedly constructed the pillars near the wall and have placed the girder and stones upon the wall “BC”; that the water of the drain of defendants also entered into the foundation of the house of the plaintiff, because they had not constructed the latrine as well the water tank in a proper manner; that water line has shown in the site plan in yellow colour whereas the drain has been shown in blue colour in the site plan; that defendants were requested many times to remove the girder as well stones and also to restrain the flow of water towards the wall “BC” but they did not pay any heed, which compelled him to file the present suit. Upon notice, the defendant-respondents appeared and filed their joint written statement raising various preliminary objections. On merits, it was contended that the wall in dispute is joint wall of the plaintiff and defendant No.2 and defendants have every right to use the same; that the drain in dispute has been constructed by the defendants while leaving a space of 2-6 feet from the joint wall; that plaintiff had already filed a civil suit in respect of the aforesaid drain, which was dismissed on 20.8.1999; that appeal preferred by plaintiff against that judgment was also dismissed on 02.8.2001; that the wall “BC” had been constructed at the expenses of both the parties to the suit. It was admitted that the defendants have not constructed any separate wall adjoining the wall “BC”, because the wall “BC” was joint between the parties to the suit. It was denied that there is any leakage in the latrine pipe. The other allegations were categorically denied and it was pleaded that the plaintiff is not entitled for any relief and prayer for dismissal of the suit was made. RSA No.3613 of 2010 (O&M) 3 Replication was not filed. From the pleadings of the parties, the following issues were framed by the trial Court. “1. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP 2. Whether the Plaintiff is entitled to relief of permanent injunction as prayd for ? OPP 3. Whether the suit of the plaintiff is not maintainable in the present from?OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPP 5. Whether the suit of the plaintiff is barred by principle of resjudicata ?OPD 6. Relief.” After hearing the parties and perusing the case file, the trial Court decided issues Nos.1 and 2 jointly and held that the wall in dispute is the exclusive wall of the plaintiff, and defendants have no concern whatsoever with the said wall and have no right to use the wall BC in any manner and in case the defendants have used the wall by inserting girder and stones and in that case they are liable to remove the same at their own expenses. Regarding the drain, it was held by the Court that the plaintiff could not prove the leakage and dampness in the wall “BC” on the account of negligence of defendants or due to improper drainage. It was also held that the evidence produced by the plaintiff is not sufficient to prove that the defendants have caused damage to the house of the plaintiff due to leakage in the pipeline laid down in the house of defendants. In view of decision of various issues, the suit of the plaintiff was partly decreed and the parties were left to bear their own costs. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendants filed an appeal before the Lower Appellate Court which was partly accepted vide impugned judgment and decree RSA No.3613 of 2010 (O&M) 4 dated 28.4.2010. While accepting the aforesaid appeal partly, the Lower Appellate Court observed as under: “In the present case, the plaintiff pleaded that the defendants have removed the bricks from the wall in dispute to the extent of 4 inches and that defendants want to construct upon the same and sought injunction against defendants for restraining them not to construct anything on the said wall. Whereas in the evidence led by the plaintiff, the plaintiff has deposed that the defendants have inserted the girder and stones in the said wall. The defendants pleaded that the said wall is joint one and the defendants have every right to use the said wall; that they have not placed any girder and stones on the said wall and that they have made separate arrangement for placing the girder and stones and that he has never removed the bricks from the said wall that in order to avoid the litigation, they have not placed any girder and stones on the said wall; that however, they have every right to use the said wall as it is the common wall; that they have constructed the pillars, upon which the girder has been placed; that they constructed the pillars in their own land, upon which stones have been placed and that the plaintiff has no right to get the said girder and stones removed. In this manner, the defendant is contending that the wall is joint and that they are not using the said wall. This fact shows that the wall not constructed jointly and was RSA No.3613 of 2010 (O&M) 5 constructed exclusively by the plaintiff, that is why the defendant is not using the same. As far as the pleading of the plaintiff is concerned, he has stated that the defendants have removed the bricks from the said wall, the defendants denied that said fact. The local commissioner has also not stated the said fact in his report and thus it has been not proved satisfactorily that the defendants have placed girder and stones on the wall in dispute. Therefore, the directions for removal of the said girder and stones from the said wall cannot be given; however the defendants can be restrained from using the said wall for placing the girder and stones etc. or from constructing almirah etc. in the said wall in future. “ Challenging the aforesaid judgment and decree of the Lower Appellate Court, this appeal has been filed by the plaintiff-appellant. The contention of the learned counsel for the appellant before this Court is that once a finding of fact was recorded in favour of the appellant to the effect that the disputed wall belongs to the appellant exclusively, the refusal of mandatory injunction directing the respondents to remove girders etc. from the aforesaid wall was not warranted and the aforesaid judgment and decree passed by the Lower Appellate Court is against the material evidence on record and suffers from perversity. I have heard learned counsel for the appellant and have perused the impugned judgment and decrees of the Courts below. The Lower Appellate Court on reappraisal of evidence has found that the respondents have not put any Girders on the disputed wall. Moreover, whether the Girders are there on the wall or not, is a pure RSA No.3613 of 2010 (O&M) 6 question of fact. Even the report of the Local Commissioner does not support the plea of appellant. In view of the aforesaid finding of fact recorded, no interference is called in the impugned judgment and decree of the Lower Appellate Court. No substantial question of law arises in this appeal. Dismissed. September 10, 2010 (RAKESH KUMAR GARG) ps JUDGE