Civil Revision No.3167 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.20715-CI of 2009 and Civil Revision No.3167 of 2009 (O&M) Date of Decision 02.09.2009 Chandra and others ......Petitioners VERSUS Sheela Devi ......Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Ravinder Malik, Advocate, for the petitioners. Mr.R.S.Tacoria, Advocate, for the respondent. ***** A.N.JINDAL, J(ORAL): This petition preferred by the defendants-petitioners (herein referred as 'the defendants') is directed against the order dated 14.05.2009, passed by Addl. District Judge, Panipat, dismissing the appeal of the defendants against the order dated 25.04.2009, passed by Civil Judge (Junior Division), Panipat allowing the application of the plaintiff- respondent (herein referred as 'the plaintiff') for injunction Under Order 39 Rule 1 & 2 C.P.C. Factual background of the case is that plaintiff filed a suit for permanent injunction against the defendants alongwith application for injunction restraining them from using Wall A B C shown as red in the site plan by way of putting any beam, lintel or in any other manner. The house shown by the letters ABCDEFGH in the site plan appended to the plaint was purchased by the plaintiff from one Rajinder Kumar son of Sh.Banwari vide registered sale deed dated 16.11.2000 and she is in possession of the same since then. The wall shown by letters ABC was exclusively owned and possessed by her and defendants have no right, title or interest in the said wall. The defendants have already demolished their house and now want to use the wall in question for which they have no right to do so. Defendants contested the suit as well as application by raising many objections. The allegations, as set up by the plaintiff have also been denied and further stated that the said wall is joint of the parties and the defendants have every right to use the same. The construction of the stairs etc. were on the said wall for the last 40 years whereas the plaintiff became Civil Revision No.3167 of 2009 (O&M) 2 the owner lateron in the year 2000. The defendants have every right to put lintel on the joint wall. The trial Court vide order dated 25.04.2009 accepted the application and restrained the defendants from interfering with the wall in question during the pendency of the suit. However, the appellate Court prima facie held the wall to be exclusively belonging to the plaintiff by observing as under:- “Had the wall in question been joint of the parties to the suit, there must have been some signs of jointness of the wall in the shape of some cup-board etc. in the wall towards the side of the defendants. As discussed earlier, the ventilator in the disputed wall is covered from the side of the plaintiff. The staircase of the defendants only touches the disputed wall and load of it has been placed on the disputed wall. In these circumstances, prima facie it appears that the wall in question exclusively belongs to the plaintiff. When the defendants have failed to prove on record that the disputed wall is joint between the parties to the suit, they have got no right to use the same and put lintel/beam etc. of their house on the same. Learned Lower Court has rightly allowed the application for ad-interim injunction filed by the plaintiff. In any case, finding the earlier report to ambiguous and also in order to further ascertain that whether the wall is joint of the parties or exclusive of the plaintiff, a Local Commissioner Mr.Ajay Jain, Advocate, was appointed by this Court, who went to the spot and submitted his report dated 24.08.2009, holding that the wall was joint of the parties. The relevant portion of the observations, made by Local Commissioner reads as under:- “I myself inspected the Wall in dispute from all possible angles. There are stairs connected with the Wall in dispute in the side of the defendants which are in totally dilapidated condition and the wooden batons on the said stairs were found inserted in the Wall in dispute. Similarly, there is a small room/store underneath the stairs and the roof thereof is of wooden batons. The said wooden batons prima facie appear to be quite old and Civil Revision No.3167 of 2009 (O&M) 3 were found inserted in the wall in dispute. Similarly, there is a small ventilator in the said disputed wall just before the start of stairs which seems to be installed in the side of the defendants. Likewise, there is a small latrine on the side of the defendants adjoining the disputed Wall and the slab of the lintel of the same was found within the disputed wall. It is no doubt that there are Almirah, Ala and Khuntis in the Wall in dispute on the side of the plaintiff. Thus, prima-facie it looks as if the Wall in dispute is common of the parties. The construction shown in the site plan prepared by the draftsman is as per the spot. There are heap of old bricks lying just at the start of the Wall in dispute. The site plan and the photographs prepared and taken on my asking be considered as a part of my report. Report is submitted.” Thus, on perusal of the report of the Local Commissioner, no iota of doubt is left in my mind to hold that wall prima-facie appears to be joint of the parties. As such, it would be held that the plaintiff has no prima-facie case in her favour for restraining the defendants from using the same and placing the slab of the lintel over the same. In any case, the rights of the plaintiff could be safeguarded by observing that construction, if any, raised by the plaintiff over the wall would be subject to the result of the decision on merits. Resultantly, this revision petition is accepted, the impugned order is set aside and the application for temporary injunction preferred for by the plaintiff is dismissed. However, any observations, made by this Court in the order will not affect the merits of the case and the construction if any made by the defendants over the wall would be subject to the decision of the suit on merits. Consequently, Civil Misc.No.20715-CII of 2009 filed by the respondents for placing on record objections to the report of Local Commissioner is hereby dismissed. (A.N.Jindal) Judge 02.09.2009 mamta-II