R. S. A. No. 4113 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4113 of 2009 (O&M) Date of Decision : February 03, 2011 Bhajan Dass and another .... Appellants Vs. Arjun Dass and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. D. S. Nain, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 12535-C of 2009 : For the reasons mentioned in the application, which is accompanied by affidavit, delay of 66 days in re-filing the appeal is condoned. Main Appeal : Plaintiffs, having lost in both the courts below, have filed the instant second appeal. Plaintiffs' case is that they are owners in possession of land detailed in paragraph 1 of the plaint, whereas defendants no.1 to 5 are R. S. A. No. 4113 of 2009 (O&M) 2 owners of land detailed in paragraphs 3 and 5 of the plaint. Defendants no.6 to 8 have taken a brick kiln on lease and have also taken the land described in paragraphs 3 and 5 of the plaint on lease for excavation of soil and preparation of kutcha bricks. Plaintiffs' grievance is that defendants no.6 to 8 have dug out/excavated earth to considerable depth, thereby causing loss of lateral support to the land of the plaintiffs. Accordingly, plaintiffs sought permanent injunction restraining the defendants from digging out/excavating earth from the land detailed in paragraphs 3 and 5 of the plaint in a way that lateral support from the land of plaintiffs described in paragraph 1 of the plaint is not lost and defendants be directed to leave strip of at least five feet width un-dug adjoining the land of the plaintiffs. Defendants, in the written statement, inter alia pleaded that they are levelling their land for the purpose of cultivation and saving their crops. Plaintiffs have not suffered any loss from the excavation of land by defendants no.6 to 8. Soil of the area was stated to be strong. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Kaithal, vide judgment and decree dated 26.09.2007, dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Kaithal vide judgment and decree dated 02.02.2009. Feeling aggrieved, plaintiffs have preferred the instant second appeal. R. S. A. No. 4113 of 2009 (O&M) 3 I have heard learned counsel for the appellants and perused the case file. On 22.08.2003, counsel for all the defendants made following statement in the trial court :- “Stated that we are not excavating/digging in our fields and we will not excavate/dig in future as well. The brick kiln has been stopped functioning since one year. We intend to level our fields. We have no concern with the field of plaintiffs/appellants herein. Necessary permission be granted to do leveling.” It would depict that brick kiln stopped working since August 2002. The suit had been filed on 17.06.2002. Soon after the filing of the suit, brick kiln, which was being run by defendants no.6 to 8, stopped functioning. Consequently, plaintiffs were left with no cause of action to pursue the suit, much less to take the same to first appeal and second appeal. It was all the more so because counsel for defendants also stated that defendants are not excavating/digging their fields and will not excavate/dig in future as well. In view of said undertaking also, the plaintiffs had no reason to proceed further with the suit after the said statement, much less to R. S. A. No. 4113 of 2009 (O&M) 4 have filed first and second appeals. Even the plaintiffs admit in evidence that now the defendants are cultivating their land from which earth was being excavated earlier. Thus, the plaintiffs corroborated the statement made by counsel for defendants that functioning of brick kiln and digging of earth had already stopped. There is also no evidence on record led by plaintiffs to show the extent of earth dug by the defendants from their land and the loss of lateral support, if any, to the land of the plaintiffs. No expert witness has either been examined by the plaintiffs. For the reasons aforesaid, it is manifest that plaintiffs have been rightly non-suited by the courts below. Concurrent finding recorded by both the courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. February 03, 2011 ( L. N. MITTAL ) monika JUDGE