RSA No.1013 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1013 of 2008(O&M) Date of decision: 18.9.2008 Pawan Kumar …… Appellant versus Krishna Devi and others …….Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR GARG * * * * Present: Mr. K.S. Chahal, Advocate for the appellant. * * * * Rakesh Kumar Garg, J . CM No.3055-C of 2008 For the reasons recorded in the application, delay of 200 days in refiling the appeal is condoned. CM stands disposed of. RSA No.1013 of 2008 1. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby the suit for mandatory injunction issuing mandate to the defendants to demolish the lintel raised on the southern wall of House No.4688 and further directing the defendants not to place anything over the said wall and not to change the nature of the wall has been dismissed. 2. The plaintiff-appellant filed suit for mandatory injunction by claiming that the wall that exists on southern side of House No.4688 of the appellant is the exclusive wall of appellant which is 90 feet in length. The respondents have been asked many a time not to raise construction, but during night intervening between October 30-31 lintel of the roof was put in this wall in an illegal way by them. RSA No.1013 of 2008(O&M) 2 3. The suit was contested by the defendant-respondents by claiming that the appellant has no cause of action and the suit is false and frivolous. It was further stated that House No.4688 is located in Hospital Bazar Bathinda and southern wall of this house which is 90' in length is common wall of the parties. It is denied as if this wall was constructed exclusively by the appellant in his own land. Rather this wall was constructed about 40-50 years back by elders of the parties. Previously shop of the appellant and adjoining shop of the respondent were having roofs of wooden ballas and later on those wooden ballas were removed by the appellant and he put cement lintel on the roof of his shop. Now the respondent has put lintel upon his own shops on the southern common wall. This southern wall was constructed by elders of the parties with their common funds and at common place. Lintel has been put on the southern wall by the respondent in presence of the appellant. The appellant has no authority to obtain mandatory injunction for removal of the same. 4. After conclusion of evidence and hearing of arguments, the trial Court dismissed the suit of the plaintiff-appellant vide impugned judgement and decree dated 6.11.2006. 5. Feeling aggrieved against the impugned judgment and decree, the appellant preferred an appeal which was dismissed vide impugned judgment and decree dated 19.3.2007 by the Additional District Judge, Bathinda. 6. Still not satisfied, the plaintiff-appellant has filed the instant appeal in this Court. 7. Sh. K.S. Chahal, learned counsel for the appellant has vehemently argued that the Courts below have wrongly held that the appellant has failed to prove exclusive ownership of the southern wall of House No.4688 i.e. wall in question. The contention of the learned counsel RSA No.1013 of 2008(O&M) 3 for the appellant is that the respondents have also paid half of the price of the wall upto 10 feet in length out of 90 feet long wall vide agreement Ex.P1 and in this way, the respondents have admitted the appellant to be owner of the whole of the wall in question, therefore, in the case in hand, the appellant is not required to prove the ownership of whole of the wall in question by any other evidence, as it is established principle of law that if a party admits a fact then the other party need not prove that fact. Thus, both the Courts below have dismissed the case on misinterpretation of the documents and evidence on record resulting into perversity in the findings of the impugned judgments. 8. I have heard learned counsel for the appellant. 9. I find no merit in the arguments raised by the learned counsel for the appellant. Certainly admitted facts need not be proved. But there is no admission suffered by the respondents qua exclusive ownership of the wall in question to be that of the appellant. The respondents took up a specific plea in the written statement that wall in question is joint between the parties and the said plea gets corroborated from the contents of Ex.P- 1, the document produced by the appellant himself, and as such, the proposition of law as stated by the learned counsel for the appellant cannot be availed in this case. The Lower Appellate Court after considering the contents of agreement EX.P-1 has observed as under: “Though agreement Ex.P1 is not proved by examining any witness of this agreement, but despite that if contents of the same taken into consideration then this means that appellant as well as respondent No.1 mentioned in Ex.P1 as if they have joint wall intervening between House No.4688 and 4687. However, it was agreed through Ex.P1 that as respondent never paid the RSA No.1013 of 2008(O&M) 4 price of wall of height of 10' x 10' earlier and as such on payment of Rs.5,000/- he will be at liberty to put the lintel of the roof on height of 10' x 10'. In Ex.P1 it was further mentioned that in case further construction raised by respondents for using this wall he will have to pay the cost of the wall to appellant. Right to recover the price of the wall alone was given to appellant vide Ex.P1 and if that be the position, then contents of Ex.P1 instead of supporting case of appellant demolishes claim of appellant qua exclusiveness of the wall in question of appellant. Rather in Ex.P1 the wall has been recorded as joint and as such case of appellant not believable that southern wall is his exclusive wall. Besides Ex.P1 is not on stamp paper and as such being un-stamped it is liable to be impounded due to which benefit of Ex.P1 cannot be gained by appellant. So in no way of the strength of Ex.P1 appellant can be held to be exclusive owner of the wall in question.” 10. The above findings recorded by the Lower Appellate Court could not be controverted by the counsel for the appellant. Thus, I find no merit in this appeal. No substantial question of law arises. 11. Dismissed. September 18, 2008 (RAKESH KUMAR GARG) ps JUDGE