IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 373 of 2007. Decided on: 13.8.2008. __________________________________________________________ Gopal Kaushal and others. … Appellants. Versus Madan Lal … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellants : Mr. Onkar Jairath, Advocate. For the respondent : H.K. Bhardwaj, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal has been filed against the judgment and decree dated 30.3.2007 passed by the learned District Judge, Una in Civil Appeal No. 47 of 2006. The brief facts necessary for the adjudication of this regular second appeal are that the predecessor of the appellants, hereinafter referred to as the plaintiffs, Shri Jagdish Ram filed a civil suit in the Court of learned Civil Judge (Junior Division), Court No.II, Una on 4.6.1993 for issuance of mandatory injunction. The suit was decreed by the learned trial Court on 28.11.1996. The respondent, hereinafter referred to as the defendant for convenience sake, filed an appeal before the Court of learned District Judge, Una against the judgment and decree dated 28.11.1996. The learned District Judge set aside the judgment and decree dated 28.11.1996 by allowing the appeal and remanded the case 1 Whether reporters of the local papers may be allowed to see the judgment? 2 to the trial Court for fresh decision. The learned trial Court framed an additional issue on 11.9.2002, which reads thus: “2-A. Whether the plaintiff is estopped to file the present suit by his acts and conduct? … OPD.” The trial Court on the basis of ocular and documentary evidence led by the parties dismissed the suit on 20.4.2006. Shri Jagdish Ram passed away during the pendency of the suit and his legal representatives were brought on record. The plaintiffs being predecessor in interest of Shri Jagdish Ram filed an appeal against the judgment and decree passed by the learned Civil Judge (Junior Division), Court No. II, Una in the Court of learned District Judge, Una. The learned District Judge, Una dismissed the appeal on 30.3.2007. This regular second appeal has been preferred by the plaintiffs against the judgment and decree passed by the learned District Judge, Una on 30.3.2007. The delay in filing the regular second appeal was condoned by the Court on 11.8.2008. Mr. Onkar Jairath, Advocate has strenuously argued that the judgments and decrees passed by both the learned Courts below are not sustainable. According to him, the learned trial Court and the learned District Judge have misinterpreted the oral as well as documentary evidence placed on record. Mr. H.K. Bhardwaj, Advocate has supported the judgments and decrees passed by both the learned Courts below. I have heard the parties and perused the record carefully. PW1-Jagdish Ram (deceased) predecessor in interest of the plaintiffs has deposed that he had constructed two shops and residential premises in the backyard of the same being his ancestral property about 3 39 years back. He used to live at Chandigarh with his son. According to him, the defendant in the month of May, 1993 gave a joint at portion ‘A’ and ‘Z’ as shown in the site plan Ext.PW1/A. He extended the wall of the shop towards Southern side and also laid lintel of the shop of the defendant by laying a ‘Zarri’ at portion ‘ABC’, as shown in the site plan, i.e. in the exclusive wall of the house of the plaintiff. The plaintiff objected to the same. However, the defendant did not relent. Shri Khushi Ram (PW2) has admitted that when the deceased Jagdish Ram constructed his shop, the shop of defendant was already in existence. The case of the defendant is that in fact, Southern wall which was alleged to be belonging to the plaintiff is owned and possessed by the defendant and it is the plaintiff who had carried out the construction of a wall on the first floor as well as laid lintel and roof of the same in the year 1955 when he was away in connection with his service. His version was supported by DW-4. The photographs Ext. DW3/A to Ext.DW3/C also make it clear that earlier there were beams in the walls. DW-3 has proved the site plan Ext. DW3/A. The learned trial Court on the basis of correct appreciation of evidence has come to just conclusion that it was a joint wall and the plaintiff as well as defendant were within their rights to use the same to the extent of their rights. The learned trial Court has rightly considered the statements of PW1-Jagdish Ram and PW2-Khushi Ram. PW2-Khushi Ram, as noticed above, has admitted in his cross-examination that when the plaintiff-Jagdish Ram constructed his shop, the shop of defendant was in existence. The version of defendant has been supported by the other DWs including Shri Bihara Singh and 4 Shri Gulzara Singh with regard to the use of Southern wall of the shop of the defendant by the plaintiff. DW5-Satish Kumar has proved the photographs. He was subjected to lengthy cross-examination but nothing could be elicited from him. The learned District Judge has rightly affirmed the findings recorded by the learned trial Court. He has taken into consideration the statements of PW1 and PW2. He has also considered the photographs DW3/A, DW3/B and DW3/C, which were taken by PW5-Satish Kumar. The findings recorded by the learned trial Court and affirmed by the learned District Judge are pure findings of fact. There is no substantial question of law involved in this appeal and the same is dismissed being devoid of merit. No costs. (Rajiv Sharma), J. August 13, 2008. (cr)