RSA No. 1644 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1644 of 2007(O&M) Decided on : 16-02-2009 M/s Gupta Construction Company, New Delhi ....Appellant VERSUS M/s Urastun Metal Industries Private Limited, Faridabad. ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Ram Chander, Advocate for the appellant MAHESH GROVER, J C.M.No. 4880-C of 2007 Service is complete. No one appears for the respondent despite service. For the reasons mentioned in the application, delay of 45 days in filing the appeal is hereby condoned. RSA No. 1644 of 2007 Plaintiff-appellant had purchased plot no. 123 in Industrial Estate-I, Faridabad and constructed 12 sheds thereon, filed a suit for permanent injunction as also mandatory injunction to plead that the existing wall between plot no. 123 and 125 had been demolished by the respondent and that they had encroached upon his area without any consent or knowledge of the plaintiff-appellant and he relied upon the site plan to demonstrate his case wherein the disputed area is depicted in red colour RSA No. 1644 of 2007 2 which includes front lawn marked by letters ABCD and rear lawn and Rasta shown in red colour marked by letters EFGHIJ. The suit was contested by the respondent to set up his ownership and possession of plot no. 125. He pleaded that since plot no. 123 has been divided by the plaintiff-appellant into two parts, sheds no. 1 to 6 including the open space and passages marked with letters ADEFGH had been sold through agreement to sell and the respondent had been put in actual physcial possession thereof. It was then pleaded that the respondent had purchased shed nos 1, 2 and 6 while other sheds were sold to other persons. It was denied that they had taken possession of sheds no. 1 to 6 without any interest, right or title in rasta on front and rear lawns as well as in wall dividing plot nos. 123 and 125. The allegations of demolition of wall were also denied. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the defendant is in possession of shed no.1 to 6, if so, to what effect? OPD. 4. Whether the suit is bad for non-joinder of parties? OPD. 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Relief. Learned Trial Court and also the Appellate Court came to the conclusion that ownership of the appellant stood established and further RSA No. 1644 of 2007 3 concluded that respondent was not in any manner having any title to the disputed property. In so far as the demolition of the wall was concerned, Trial Court concluded that the existing wall between plot nos. 123 and 125 needed to be re-constructed and granted mandatory injunction as prayed for. In appeal, learned First Appellate Court reversed the findings regarding re- construction of the wall. However, finding regarding ownership was affirmed. In Regular Second Appeal, learned counsel for the appellant limited his grievance only to the finding recorded by First Appellate Court regarding re-construction being negatived. It was contended by him that the site plan adequately depicted the existence of a wall and since the same had been demolished by the respondent and encroachment had been raised by him, mandatory injunction as granted by the learned Trial Court was correct and the finding of the learned First Appellate Court is perverse. I have heard learned counsel for the appellant and have perused the impugned judgment. There is no evidence except the site plan which has been produced by the appellant to contend that the wall had been demolished. There is no dispute regarding ownership as it has been conclusively held by both the Courts below. The appellant who was the plaintiff had also not disclosed as to when the wall was demolished and no other independent evidence except the site plan which is unauthenticated document has been produced. In this view of the matter, when the clear findings of facts have been recorded by the learned First Appellate Court and no other evidence has been shown to persuade this Court to the contrary, I am of the RSA No. 1644 of 2007 4 considered opinion that the present appeal is totally devoid of any merit and the same deserves to be dismissed. February 16 , 2009 (Mahesh Grover) rekha Judge