R.S.A.No.1540 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1540 of 2007 Date of decision:15th October, 2009 Jai Gopal Bhuchar ......Appellant Versus Shiv Kumar Tejpal ......Respondent Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. N.C.Kinra, Advocate for the appellant. Mr. P.S.Sarna, Advocate for the respondent. Rajive Bhalla, J.(Oral) The appeal has been filed to challenge the judgments and decrees dated 4.09.2003 and 8.11.2006, passed by the Additional Civil Judge (Senior Division), Balachaur and the Additional District Judge, Nawanshahr, dismissing the suit filed by the appellant and his appeal. The plaintiff-appellant filed a suit for declaration and permanent injunction to restrain the respondent from opening any window towards his property or passing any sewerage and water supply lines through the court yard of his house. In response, the respondent filed a written statement pleading that the alleged court yard and deodhi were common property of the appellant and Jagdish Chander. The appellant has purchased the property from Jagdish Chander. The sewerage connection is in the name of Jagdish Chander and sewerage pipes pass through the court yard. As the court yard and the deodhi are common property, the respondent cannot be restrained. On the basis of the pleading the trial court framed the R.S.A.No.1540 of 2007 -2- following issues:- 1. Whether the plaintiff is entitled for declaration as prayed for? OPP 2. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 3. Whether the suit is not within time? OPD 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 5. Whether the site plan filed by the plaintiff is incorrect? OPD 6. Whether the suit is not maintainable?OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 8. Relief. After a due consideration of the pleadings, the evidence adduced and the arguments addressed, the trial court held that for want of any cogent evidence to establish that the appellant is the exclusive owner of this property, the injunction prayed for cannot be granted. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 8.11.2006, the Additional District Judge, Nawanshahr, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the courts below were duty bound to identify the suit property and only thereafter, proceed to record a finding in respect of ownership. As the courts below have not followed this procedure, the impugned judgments are illegal and void. It is further submitted that the appellant's prayer for R.S.A.No.1540 of 2007 -3- additional evidence was wrongly declined as the sale deed sought to be proved by additional evidence, clearly establishes that the appellant is owner in possession of the court yard and the deodhi. Counsel for the respondent, on the other hand submits that the findings of fact recorded by the courts below, are legal and valid and as no question of law much less a substantial question of law arises for adjudication, the appeal be dismissed. It is further submitted that the respondent purchased the property from Jagdish Chander. The court yard was the common property of Jagdish Chander and the appellant. As the appellant has not produced any document of title with respect to the deodhi and the court yard, the courts below rightly dismissed the suit. I have heard counsel for the parties, perused the impugned judgment and considered the questions of law framed by counsel for the appellant but express my inability to hold that the impugned judgments are in any manner incorrect or give rise to any question of law much less the substantial questions of law framed by counsel for the appellant. The argument that the courts below have failed in their duty to identify the property, is entirely misplaced. It is no part of a courts duty to proceed on its own to identify property, particularly where parties to a suit have failed to produce evidence to warrant such a course. It would be necessary to mention here that neither party has produced any evidence as to his exclusive ownership of the court yard and the deodhi. The appellant has failed to produce any evidence that he purchased the court yard. The courts below therefore, rightly held that the court yard is common property and therefore, the respondent cannot be restrained from opening windows and laying sewerage pipes through the court yard. The other argument that the R.S.A.No.1540 of 2007 -4- application for additional evidence was wrongly dismissed cannot be accepted, as the document sought to be produced does not establish that the appellant is the owner of the court yard or deodhi. As the findings of fact recorded by the courts below do not suffer from any error of law and do not raise any question much less a substantial question of law, the appeal is dismissed with no order as to costs. ` [RAJIVE BHALLA] JUDGE 15th October, 2009 Shivani Kaushik