IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 105 of 2007 Date of decision : January 20, 2010 Surinder Singh Aswal ....Appellant versus Baldev Sharma and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Robin Dutt, Advocate, for the appellant Mr. Vijender Kaushik, Advocate, for the respondents L.N. Mittal, J. (Oral) Plaintiff Surinder Singh Aswal having remained unsuccessful in both the courts below has filed the instant second appeal. Plaintiff filed suit for mandatory injunction alleging that he purchased land shown in green and red colours in the site plan Ex. P3 vide sale deed dated 15.2.1989 and is owner in possession thereof since then. However, red coloured portion thereof shown by letters ABCD in the site plan has been encroached upon by defendant no. 1 who is owner of adjoining house No. 155 on the east. Defendant no. 1 raised wall over the said portion a month prior to the filing of the suit. The plaintiff accordingly sought mandatory injunction directing defendants to remove the said construction. The plaintiff also sought permanent injunction restraining defendants from interfering in the peaceful possession of the plaintiff over his land. Regular Second Appeal No. 105 of 2007 -2- Defendant no. 1 who was the sole defendant initially filed written statement and interalia, pleaded that he and his wife defendant no. 2 purchased house No. 155 vide sale deed dated 28.9.1987 and they are owners in possession thereof since then. During pendency of the suit, they have sold said house to defendant no. 3 in the year 1997. It was pleaded that no encroachment has been made on the land of the plaintiff. The house of the defendants already stood constructed when defendants nos. 1 and 2 purchased it vide sale deed dated 28.9.1987 and they constructed latrine and bath room in it after purchasing it and no encroachment has been made. Learned Civil Judge (Senior Division), Panchkula vide judgment and decree dated 3.4.2006 dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has also been dismissed by learned District Judge, Panchkula vide judgment 15.6.2006. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that as per demarcation report Ex. P5, the defendants have encroached upon red coloured portion shown by letters ABCD of the land of the appellant. The contention cannot be accepted because there is concurrent finding of fact by both the courts below that no encroachment on land of the plaintiff has been made. The said finding is based on appreciation of evidence and therefore, cannot be challenged in second appeal. In addition thereto, the plaintiff himself admitted that at the time of purchase of land by him, boundary wall of house of defendant no. 1 was already in existence. It Regular Second Appeal No. 105 of 2007 -3- means that the suit portion ABCD was already in possession of defendants in the year 1989 when the plaintiff purchased the land. However, in spite thereof plaintiff did not seek relief of possession of the said portion and sought mandatory injunction only. Suit for injunction simpliciter would not be maintainable without seeking relief of possession. Moreover, the said portion was not even in possession of the vendor of the plaintiff. It would also show that no encroachment had been made by the defendants on the land of the plaintiff. For the reasons recorded hereinabove, I find no illegality in the judgments of the courts below. 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 being bereft of any merit. ( L.N. Mittal ) January 20, 2010 Judge 'tiwana'