R.S.A. No. 3374 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3374 of 2007 Date of Decision: 11.12.2008 Banwari Lal ...Appellant. Versus Surajbhan and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellant. AJAY KUMAR MITTAL, J. This regular second appeal filed by defendant No.2 is directed against the judgment and decree dated 1.2.2007 passed by the District Judge, Narnaul, affirming that of the Civil Judge (Senior Division), Narnaul dated 26.7.2003 whereby the suit of the plaintiff for mandatory injunction, was decreed. Sans unessentials, the facts of the case are that vide sale deed No. 438 dated 6.7.1964, the plaintiff and his father, Mungamal, purchased a plot measuring 149/1/3 square yards, fully described in para 1 of the plaint, from Harwari Lal and Ram Kishan. It was pleaded that Mungamal, father of the plaintiff and proforma defendants No.3 to 5, had got site plan of the proposed construction on the plot sanctioned R.S.A. No. 3374 of 2007 -2- on 31.8.1964 wherein a space for street was carved out from his own plot. It was further pleaded that defendant No.1 had nothing to do with the street left by the plaintiff and the proforma defendants from their own plot for their own private use but he while selling the house to defendant No.2 vide sale deed dated 15.6.1999 had shown the said street as jointly owned by him with the plaintiff. According to the plaintiff there was no ventilator, window, door or Nali of the house of defendant No.1 which opened towards the street in question. Under the garb of sale deed dated 15.6.1999, defendant No.2 wanted to open ventilators, Nali and Parnala towards the street to which they had no right and that gave rise to the filing of the suit. To controvert the suit of the plaintiffs, defendant No.2 filed a written statement raising various preliminary objections. It was pleaded that the father of the plaintiff had purchased the suit property without any boundary wall and the vendors were not owners of the area sold by them. It was further pleaded that the sale deed dated 6.7.1964 had not shown the street though the same was in existence towards the Western side of the house of the plaintiff and since long ventilators, apertures, Parnalas etc. of the Eastern portion of the house of defendant No.2 had been having their opening in said street. According to defendant No.2, he had constructed a latrine in the street as a result of which there was accumulation of water in the street damaging the foundation of his Haveli which he had purchased vide sale deed dated 15.6.1999. The father of the plaintiff had got the site plan sanctioned on 3.9.1964 in a clandestine manner and the same was not binding upon the rights of defendant No.2. The other averments made in the R.S.A. No. 3374 of 2007 -3- plaint were denied and a prayer for dismissal of the suit was made. The trial court framed various issues and on appreciation of the oral as well as the documentary evidence led by the parties came to the conclusion that the Moris (outlet) opened by defendant No.2 towards the street were liable to be closed down, whereas the plaintiff and the proforma defendants were at liberty to obstruct the ventilators by raising construction on their own land. Accordingly, the trial court vide judgment and decree dated 26.7.2003 decreed the suit of the plaintiff. Feeling aggrieved, defendant No.2 approached the lower appellate court which vide judgment and decree dated 1.2.2007 affirmed the findings recorded by the trial court and dismissed the appeal. I have heard the learned counsel for the appellant and have perused the impugned judgments with his assistance. Learned counsel for the appellants has made an attempt to reappreciate the evidence led by the parties before the trial court so as to persuade this Court to differ with the conclusion arrived at by the courts below but the same is not permissible under Section 100 of the Code of Civil Procedure. The courts below had recorded a finding of fact that the street of 2 feet width now in existence towards Eastern side of the house of defendant No.2 was neither joint of the parties nor in existence at the time when the suit property in possession of the plaintiff had been purchased by his father on 6.7.1964. It was further recorded that since the street in question had been left by the plaintiff in the plot privately owned by him, defendant No.2 had no right to open his apertures therein. No misreading of the evidence on record by the R.S.A. No. 3374 of 2007 -4- courts below has been shown by the learned counsel for the appellant warranting interference by this Court in the regular second appeal. No question of law, much less a substantial question of law arises in this appeal for consideration of this Court. In view of the above, there is no merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. December 11, 2008 (AJAY KUMAR MITTAL) gbs JUDGE R.S.A. No. 3374 of 2007 -5- C.M. No. 9374-C of 2007 IN RSA No. 3374 of 2007 **** Present: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellant. **** This is an application under Section 151 of the Code of Civil Procedure for condonation of 42 days' delay in refiling the appeal. After hearing the learned counsel and perusing the application, the delay of 42 days in refiling the appeal is condoned. CM stands disposed of accordingly. December 11, 2008 (AJAY KUMAR MITTAL) gbs JUDGE