IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2057 of 2009 (O&M) Date of decision: December 05, 2011 Nirmal Singh .. Appellant Vs. Pal Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.K. Chauhan, Advocate for the appellant. None for the respondents. A.N. Jindal, J Having lost before both the courts below, the plaintiff- appellant has preferred this regular second appeal. The plaintiff had filed a suit for permanent injunction with the allegations that the plaintiff No.1 is residing in Canada with his family, whereas, the plaintiff No.2 is residing at village Dhadde Khurd, Police Station Mahilpur, District Hoshiarpur. The property as shown in green colour in the site plan appended to the plaint was owned and possessed by them. It is a big residential house and a double story building. The defendants tried to demolish the wall shown in red colour marked as “ABCD” in the site plan in their absence. The wall has got a bigger width then the remaining wall. The remaining wall exists at point “AB” up to the point “X”. Half of the portion of the wall in dispute is in the taper shape. The plaintiff got affixed an iron grill in the middle of the wall for safety purpose of the first story. It is a parapet wall. The respondents have raised wall from point “E” to “A” in straightway along with the wall belonging to the plaintiffs. However, the defendants are threatening to demolish the taper from point “A” to “C” and then to raise the wall. The plaintiffs being the exclusive owners of the wall, the defendants have no right to dismantle the same and raise construction claiming right over it. Upon notice, the defendants contested the cause by filing written statement wherein they admitted that the plaintiffs are the owners of the property as shown in green colour and it is their residential house and R.S.A. No. 2057 of 2009 (O&M) -2- the defendants are the owners in possession of the wall, shown in red colour and plaintiffs have no concern with it. The foundations of the house and the walls are separate of both the houses. Previously, the wall adjoining to the house of the plaintiff, owned by the defendants, was constructed up to the height of 6' and thereafter the defendants constructed the wall. Now the plaintiffs are obstructing the defendants from raising further construction over the said wall. There is no question of taking any advantage in the absence of the plaintiffs. The plaintiffs have no concern with the wall in dispute as well as the other walls of the house of the defendants. As regards the width of the wall shown at point “ABCD” it is not correct. The entire wall from point “X” to “AB” and “CD” is the ownership of the answering defendants. The iron grill was affixed by the plaintiffs on their own wall and the wall of the answering defendants is separate. The plaintiffs have no right to occupy the same. So far as the shape of taper of the wall is concerned, there is some space in between both the walls i.e. of the plaintiffs and the defendants. The rainy water fells in the said space and was causing loss to both the walls, therefore, in order to save both the walls the shape of the walls was made as taper for the time being. It has been further stated that the answering defendants have got right to raise the construction and denied that the wall in question is the ownership of the plaintiffs. It has been further averred that the plaintiffs have no cause of action to file the present suit. Rest of the averments were denied and prayer has been made to dismiss the suit. Replication was not filed. From the pleadings of the parties, the following issues were framed by the trial court :- 1. Whether the plaintiffs are entitled for permanent injunction as prayed for?OPP 2. Whether the plaintiffs have no locus standi to file the present suit?OPD 3. Whether the plaintiffs have concealed the true facts from the court? If so, its effect?OPD 4. Relief. Both the parties led evidence. The trial court after scrutinizing the evidence partly decreed the suit of the plaintiff by holding that the disputed wall is a common wall. The appellate court dismissed the appeal. R.S.A. No. 2057 of 2009 (O&M) -3- The prime point into controversy, requiring determination is, “whether the wall shown in red colour in the site plan Ex.P1 marked as “ABCD” is a common wall of the parties or is the ownership of the plaintiffs. Both the parties do not dispute about the ownership of the houses which are adjoining each other. There is no denying a fact that the houses are situated within the lal lakir of the village, as such, there is no document with either of the parties to show the ownership. As a matter of fact, in cases of old wall bifurcating the houses of two adversaries, the title could be determined by way of spot inspection by the Local Commissioner so was done in this case. The Local Commissioner as per directions of the court inspected the disputed wall and submitted his report Ex.P2 along with the attendance sheet Ex.A3. The report transpires that the wall is about 6' in height and 18” in width. The first story of the plaintiffs' house rests upon 9” of the width of the said wall and rest of the 9” wall has been given a taper shape in order to save the property from the rainy water etc. The argument that since rest of 9” wall has been tapered for separating the first story, therefore, the wall is exclusive ownership of the plaintiff is of no consequence. Had the wall been exclusive ownership of the plaintiffs then they could have rested the entire first floor on the 18” wall. The Local Commissioner who appeared in the witness box as PW-3, during cross- examination, admitted that there was a space in between the wall. He has also admitted that he had duly mentioned this fact in his report All this goes to impel this court to draw the inference that there is a gap between the wall as a whole. In any case, from the scrutiny of the entire report it transpires that the wall is not the exclusive ownership of the plaintiffs. Having scrutinized the judgments of both the courts below, the same are well founded and well reasoned and both of them have consistently stated that the wall is joint of the parties. No question of law much less substantial question of law arises in this case for determination. Dismissed. December 05, 2011 (A.N. Jindal) deepak Judge