R.S.A.No. 1757 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1757 of 2010 (O&M) Date of decision: 27.1.2011 J.K.Verma and another ......Appellants Versus Sudesh Kumar Jain and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ashwani Verma, Advocate, for the appellants. Mr.Sanjay Jain Advocate for respondent No.1. Mr.Gitish Bhardwaj, Advocate for Mr.Arun Walia, Advocate for HUDA. **** SABINA, J. Plaintiff had filed a suit for mandatory injunction that defendants No.1 and 2 be directed to remove the electric meter, stairs and show case illegally fitted by them by encroaching upon half share of the plaintiff in the common wall between the houses of the plaintiff and defendants No.1 and 2. R.S.A.No. 1757 of 2010 (O&M) 2 The case of the plaintiff, in brief, was that the plaintiff was resident of house No.713, whereas, defendants were owners of house No.712. Both the parties had constructed their houses on the plots allotted to them. Defendants No.1 and 2, while constructing the staircase, had, however, encroached upon the share of the plaintiff in the common wall between the two houses. Defendants No.1 and 2, in their written statement, averred that the plaintiff had no locus standi to file the suit. It was admitted that the plaintiff was owner of house No.713 but it was denied that the defendants had encroached upon 4 ½” wall belonging to the plaintiff. The plaintiff had also constructed staircase on the common wall. The plaintiff had paid half cost of the construction of the common wall as the defendants had constructed their house prior to the plaintiff. Defendant No.3, in its written statement, averred that the suit was not maintainable and civil Court had no jurisdiction to try the suit. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of decree of mandatory injunction directing the defendants No.1 and 2 to remove the electric meter board, stairs and show case fitted illegally and further directed to take legal action against the defendants No.1 and 2 as per R.S.A.No. 1757 of 2010 (O&M) 3 law? OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4.Whether the civil court has no jurisdiction to entertain and try the present suit ? OPD 5. Whether the plaintiff has not come to the court with clean hands and suppressed true and material facts from the Court? OPD 6. Whether suit of the plaintiff is bad for mis-joinder of necessary parties ? OPD 7. Whether the plaintiff is estopped by his own act and conduct ? OPD 8. Relief.” The trial Court vide judgment and decree dated 21.11.2009 dismissed the suit of the plaintiff, whereas, in appeal filed by the plaintiff, the Additional District Judge, Ambala vide judgment and decree dated 9.2.2010 decreed the suit of the plaintiff. Defendants were directed to remove the staircase to the extent of 4 ½' so that the share of the plaintiff to the extent of 4 ½' in the common wall may become available to him. Hence, the present appeal by defendants No.1 and 2. Learned counsel for the appellants has submitted that the first Appellate Court had erred in decreeing the suit of the plaintiff. R.S.A.No. 1757 of 2010 (O&M) 4 The plaintiff had also constructed staircase on the common wall and hence, he could not ask to remove their staircase. In support of his arguments, learned counsel for the appellants has placed reliance on Sardari Lal Gupta vs. Siri Krishan Aggarwal , AIR 1984 Punjab and Haryana 439, wherein, it was held as under:- “When a co-owner uses the joint wall for the improvement of his property, without injuring the wall or the adjoining property and not claiming the additional structure as his own, it cannot be said that the co-owner who builds upon common wall makes an unreasonable use of common wall. Merely because a co-owner makes a profitable or reasonable use of the joint property, it cannot be said that the other co-owner is ousted as the additional structure is the property of both. If a co-owner raises the common wall and claims the additional structure as his exclusive it may amount to ouster of the other co-owner. If a co-owner raises the common wall and such an act is likely to cause a damage to the adjoining property or the common wall the use thereof is not reasonable and any co-owner who is aggrieved may have remedy at law. When without injuring the common wall or the adjoining property a co-owner makes a reasonable or profitable use of it, it cannot be said that he makes an unreasonable use of the property. The houses R.S.A.No. 1757 of 2010 (O&M) 5 which the common wall divides were built many years ago; they would require repair or need modern re- construction to suit the requirements of the occupiers. The society moves fast, the changes are speedy and to hold that one co-owner has absolute right to prevent the other co-owner from making profitable or reasonable use of the common wall would prevent citizens from making profitable use of their properties.” Learned counsel for the respondent-plaintiff, on the other hand, has submitted that the defendants could not be allowed to encroach upon his share in the common wall. The defendants could use the common wall to the extent of their share i.e. 4 ½” as the common wall measured 9”. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, the appellants had constructed their house prior to the construction of the house of the plaintiff. The plaintiff had paid half cost of the construction of the common wall to the appellants. The appellants have constructed staircase by inserting iron rods in the common wall to the extent of 9”. The appellants could have inserted the iron rods in the common wall to the extent of 4 ½” only as their share in the common wall was of 4 ½”. The defendants could not, however, insert the iron rods in the common R.S.A.No. 1757 of 2010 (O&M) 6 wall to the extent of 9” without the consent of the plaintiff. In these circumstances, it cannot be said that the plaintiff had not suffered any damage/loss because of iron rods inserted in the common wall belonging to his share. Hence, the judgment relied upon by learned counsel for the appellants fails to advance the case of the appellants as it is based on different facts. Learned first Appellate Court had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 27, 2011 anita