IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Civil Misc. No. 11576-C of 2007 & Regular Second Appeal No. 4098 of 2007 Date of decision: 11.3.2008 --- Nand Kishore and another --- Appellants Versus Prabha and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. B.S. Jaswal, Advocate for the appellants. --- AJAY KUMAR MITTAL, J. Assailed in this second appeal at the instance of the defendants are the concurrent findings of fact recorded by both the courts below. The trial court decreed the suit for permanent injunction filed by the plaintiffs vide judgment and decree dated 26.4.2001 whereas the appeal carried at the instance of the defendants was dismissed by the first appellate court vide judgment and decree dated 21.5.2007. The factual milieu is that plaintiff No.1 purchased a shop bearing No. 103 from defendant No.3 in which she has been running business of cloth through her father whereas the other plaintiffs have been inducted as tenants by defendant No.3 and father of defendant Nos. 4 and 5 in other shops in the same market. All the plaintiffs are running RSA No. 4098 of 2007 the business of whole-sale cloth merchants. There is a common covered passage of the size of 5 feet 9 inches. Shop of defendant No.1 is situated in front of entrance of main gate which is having the width of 3 feet 6 inches and it is 12 feet in length and because of this reason, the width of the original passage which earlier used to be about 9 feet has been reduced to 5 ft. 9 inches. The space that is now left for ingress and out-gress falls short of the desired need inasmuch as a great difficulty is experienced by the labourers while carrying big bundles of clothes through the said path. The defendant Nos. 1 and 2 started threatening the plaintiffs to encroach 2 feet wide space of the said passage forcibly and to merge that much portion in to their shop. It was further pleaded that if the defendants manage to raise pucca construction in place of the wooden bench of two feet width, it will not be possible for the plaintiffs to carry on their business activity. The defendants contested the plaintiffs’ claim and asserted that they had got every right to raise permanent construction because the portion shown in red colour in the site plan filed along with plaint was a part of their shop, where they were carrying on their business, and the plaintiffs had no right to raise any objection thereto. The trial court after considering the evidence brought on the record returned a finding that there was a passage of 5 feet 9 inches immediately in front of shops of defendant Nos. 1 and 2 and besides that passage, there was no other alternative means of ingress and out- gress to various shops existing in the market. It was further held that if the defendants were allowed to encroach upon the aforesaid passage, the same would then be reduced from 5 feet 9 inches to 3 feet 9 inches and the plaintiffs would suffer irreparable loss as it would be very difficult for their labourers to pass through that passage carrying with them the 2 RSA No. 4098 of 2007 baggages of the size bigger than four feet. No fault was found about the maintainability of the suit. The suit was consequently decreed restraining the defendants from raising any such permanent construction resulting into the blocking or covering that portion of the common passage which had been shown at points A B C D in yellow colour in the rough site plan appended with the plaint and thereby decreasing its width from 5 feet 9 inches to 3 feet 9 inches. The findings returned by the trial court were affirmed by the first appellate court and the appeal filed at the instance of the defendants was dismissed. I have heard learned counsel for the appellants and have perused the record. The findings recorded by the courts below are concurrent findings of fact based on correct appreciation of the oral as well as the documentary evidence on record. Though the counsel argued that the said findings are legally not sustainable, but he could not pin-point any particular reason in that behalf. The counsel also could not show to this Court any illegality or perversity in the findings of the courts below nor could otherwise persuade this Court by reference to any law or the material available on the record that any of the findings was illegal and called for interference. No substantial question of law arises for the consideration of this Court. In view of the above, there is no merit in the appeal and the same is accordingly dismissed with no order as to costs. Since the appeal has been dismissed on merits, no separate order is being passed on the Civil Misc. application for condonation of 3 RSA No. 4098 of 2007 delay in filing the present appeal. The said question is, therefore, left open. (AJAY KUMAR MITTAL) March 11, 2008 JUDGE *RKMALIK* 4