Regular Second Appeal No. 5005 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 5005 of 2010 Date of decision : December 21, 2010 Bimal Kaur ....Appellant versus Malook Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sunil Chadha, Advocate, for the appellant L.N. Mittal, J. (Oral) This is second appeal by defendant no. 1 Smt. Bimal Kaur after the defendants (appellant and her son Baljit Singh proforma respondent no. 3) failed in both the courts below. Respondents no. 1 and 2/plaintiffs who are sons of Dalip Singh filed suit alleging that Amar Singh was owner in possession of the suit house. On his death his son Jagir Singh inherited it. Jagir Singh sold it to plaintiffs' father Dalip Singh vide registered sale deed dated 14.8.1985. After the death of Dalip Singh, plaintiffs being his heirs are owners in possession of the suit house. Its number is 79. Defendants are owners in possession of adjoining house in plot no. 80. However, defendants have no concern with the suit house but they threatened to encroach upon it. There is wall depicted by letters AH in the site plan regarding which defendants Regular Second Appeal No. 5005 of 2010 -2- had also filed a suit against plaintiffs' father claiming it to be common wall. However, it was held to be exclusive wall of the plaintiffs' father in the said previous litigation. Inspite thereof, defendants are preventing the plaintiffs from constructing intervening wall further from point H to point B. Plaintiffs accordingly sought permanent injunction restraining the defendants from encroaching upon the plaintiffs' house and from raising any construction thereon and from interfering in possession of the plaintiffs thereon and from obstructing plaintiffs from constructing intervening wall by extending it from point H to point B as depicted in site plan. The defendants admitted that Amar Singh was owner in possession of house in dispute bearing plot no. 79. However, purchase of the said house by plaintiffs' father was denied. The defendants, however, admitted that their adjoining house is in plot no. 80 of which they are in occupation, having purchased the plot from Tara Singh. The defendants also pleaded that there is no boundary wall towards northern side of the house of the defendants to separate it from the house of the plaintiffs. Plaintiffs intend to encroach upon the plot of the defendants. As per demarcation obtained by the defendants, no area of plot no. 79 was found in possession of the defendants. Plaintiffs are wrongly alleging that defendants have encroached upon plot no. 79. Various other pleas were also raised. Learned Civil Judge (Senior Division), Kapurthala vide judgment and decree dated 24.5.2006 decreed the plaintiffs' suit. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Kapurthala vide judgment and decree dated Regular Second Appeal No. 5005 of 2010 -3- 13.10.2010. Feeling aggrieved, defendant no. 1 only has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that there is a passage leading from eastern main street to the house of defendants (on south of plaintiffs' house) and the plaintiffs want to close the said passage by constructing wall AB. The contention cannot be accepted. There is not even a remote reference to the alleged passage in the written statement as also conceded by the learned counsel for the appellant after going through the written statement. Consequently, the contention being completely beyond the pleadings cannot be accepted. On the other hand, plaintiffs have proved their sale deed vide which they purchased the disputed house being plot no. 79. Defendants have admittedly no concern with house no. 79. There was also previous suit instituted by defendants against the plaintiffs' father regarding wall depicted by letters AH in site plan Ex. P2 produced by the plaintiffs. The said wall is intervening wall of the houses of the parties. Defendants claimed in the previous suit that the said wall was joint of the parties. However, in first appeal arising out of that suit, the said wall was held to be exclusive of plaintiffs' father. The plaintiffs now went to extend the same wall further as there is no intervening wall between houses of the parties in the remaining length. Since wall AH depicted in site plan Ex. P2 has been held to be exclusive of the plaintiffs, they have a right to extend it further upto point B to erect intervening wall between houses of the parties. Regular Second Appeal No. 5005 of 2010 -4- Defendants have no right to obstruct the same. Defendants claimed passage from the eastern main street for their house. However, admittedly house of plaintiffs is 77' x 22'. Length of house no. 80 of the defendants is not alleged to be more than 77 feet which is the length of the adjoining house of the plaintiffs. Consequently, the plaintiffs have a right to extend wall upto entire length of their house. It has also come in evidence of both the parties that level of house of plaintiffs is higher than the level of defendants' house. This circumstance also supports the plaintiffs' case who want to construct the intervening wall of their house along the entire length towards the house of the defendants. Learned counsel for the appellants referred to testimony of Fauza Singh DW6 and contended that Fauza Singh has already succeeded in the courts below in his suit filed against the plaintiffs whose second appeal is pending in this Court. However, testimony of Fauza Singh cannot be given any weight in the instant case because Fauza Singh having litigation with plaintiffs was a convenient witness available to the defendants. There is also a case under section 326 IPC pending against Fauza Singh. Fauza Singh admitted that he has contested several cases with the plaintiffs. Even otherwise statement of Fauza Singh being relied on by learned counsel for the appellants relates to the alleged passage leading from the eastern main street from which the defendants also want to have access to their house. However, at the risk of repetition it may be highlighted that there is no such pleading in the written statement On the contrary, the defendants have access to their house from western side as admittedly there is street Regular Second Appeal No. 5005 of 2010 -5- towards west of their house. Both the courts below have analyzed the evidence led by the parties and have come to concurrent finding in favour of the plaintiffs. The said finding is fully supported by cogent reasons and is not shown to be perverse or illegal so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in this second appeal. The appeal lacks any merit and is accordingly dismissed in limine. ( L.N. Mittal ) December 21, 2010 Judge 'dalbir'