R.S.A. No.3553 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3553 of 2010 Date of Decision:05.07.2011 Harbans Lal .....Appellant Versus Santosh Aggarwal .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.S.K.Arora, Advocate, for the appellant. **** M EHINDER S INGH S ULLAR , J.(oral) The epitome of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record is, that originally plaintiff Shiv Charan Dass Aggarwal son of Late Assa Ram, since deceased(being represented through his LR-respondent-plaintiff(hereinafter to be referred as the “plaintiff”) filed the suit for a decree of permanent injunction, restraining his real brother Harbans Lal son of Late Assa Ram-appellant-defendant (for brevity the “defendant”) from opening the windows in the wall, in question, denominated/demarcated by letters “CD” in the site plan, towards its outer side, inter alia, pleading that the passage in question is a common passage of both the parties, 4½ feet in width and it leads to his house, which subsequently decreases to 3 feet only. In case, the defendant succeeded in his attempt to open windows and to extend the projection in the street, then it will adversely affect the air, light and ventilation of the house of the plaintiff. According to him(plaintiff), previously there was also civil litigation between the parties and ultimately the matter was compromised in the first Appellate Court by way of compromise decree dated R.S.A. No.3553 of 2010 2 03.10.1997. On the basis of aforesaid allegations, the plaintiff sought a decree of permanent injunction against the defendant, in the manner indicated hereinabove. 2. The defendant contested the suit of the plaintiff and filed the written statement, taking certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiff. It was claimed that the plaintiff has not come to the Court with clean hands, as he is having his projection on the windows in the street, in question and his windows also open towards the street, which is only 3 feet wide. He(defendant) has also the right to raise the projection and open windows towards the common street, which is 4½ feet wide at the relevant place. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. 4. The parties in order to substantiate their respective pleas, brought on record oral as well as the documentary evidence. 5. Having completed all the codal formalities, the trial Court partly decreed the suit of the plaintiff through the medium of judgment and decree dated 02.05.2009. 6. The parties did not feel satisfied with the impugned judgment and decree of the trial Court and preferred their respective appeals. The first Appellate Court maintained the decision of the trial Court by virtue of impugned judgment and decree dated 13.04.2010. 7. Appellant-defendant-Harbans Lal son of Late Assa Ram did not feel satisfied with the impugned judgment and decree of the first Appellate Court and instituted the present regular second appeal. That is how, I am seized of the matter. 8. After hearing the learned counsel for the appellant-defendant, going R.S.A. No.3553 of 2010 3 through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal. 9. Ex facie, the argument of the learned counsel that once the Courts below permitted the defendant to open the windows towards the street in question, then he has the right to raise projection over the same, is not only devoid of merit but misplaced as well. 10. As is evident from the record that the trial Court as well as the first Appellate Court have recorded a finding of fact that if the defendant is allowed to raise projection over the windows and ventilators in the wall towards the street, then it will block the natural flow of air and light of the house of the plaintiff. 11. What is not disputed here is that the original plaintiff was enjoying the air, light and ventilation of his house through the street since long, then it cannot legally be restricted by permitting the defendant to raise projection over the windows in his wall towards the street. 12. Moreover, the trial Court having scanned the admissible evidence in relation to the pleadings of the parties and the earlier compromise decree dated 03.10.1997 has recorded a finding of fact that although the defendant is entitled to open the windows, but he cannot be permitted to obstruct the right of air, light and ventilation of the house of the plaintiff, by raising projection over the windows in his wall towards the street. 13. Not only that, the decree of the trial Court was upheld by the first Appellate Court. Such finding of fact based on the evidence, cannot possibly be interfered with by this Court under Section 100 CPC, unless and until the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendant, so as to take a contrary view, than that of well articulated decision arrived at by the Courts below in this respect. 14. Since, no question of law, much less substantial, is involved in the R.S.A. No.3553 of 2010 4 second appeal, so, no interference is warranted in the impugned judgments and decrees of the Courts below, in view of the law laid down by the Hon'ble Supreme Court in case Kashmir Singh Versus Harnam Singh and another, 2008(2) R.C.R.(Civil) 688 : 2008 AIR (SC) 1749. 15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendant. 16. In the light of aforesaid reasons, as there is no merit, therefore, the present appeal is hereby dismissed as such. July 05, 2011 (MEHINDER SINGH SULLAR) seema JUDGE