R.S.A. No.177 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.177 of 2010 (O&M) Decided on : 20-01-2010 Surjit Singh .... Appellant VERSUS Naresh Kumari .... Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. Vikas Singh, Advocate, for the appellant. MAHESH GROVER, J . This Regular Second Appeal has been preferred by the appellant-defendant against the judgment and decree dated 27.11.2009 passed by the Additional District Judge, Patiala, (described as `the first appellate Court') vide which the judgment and decree dated 5.8.2005 passed by the Civil Judge (Junior Division) Nabha,(referred to hereinafter as `the trial Court') was set aside and the suit of the plaintiff for mandatory injunction was decreed. In a suit for mandatory injunction filed by the plaintiff- respondent, it was pleaded that there was a common wall existing from point B to C, which was demolished by the appellant. A prayer for mandatory injunction had been made seeking a direction to be given to the appellant, who was the defendant to reconstruct the same. The suit was resisted by the appellant, who disputed the R.S.A. No.177 of 2010 (O&M) -2- existence of a common wall. It was denied that the construction of the wall had been made by the respondent and it was pleaded that the appellant has purchased the house measuring 263 sq. yards 15 Gerah from Uttar Singh S/o Gulab Singh, through general power of attorney, vide sale deed dated 31.5.2003 and the wall on the backside of the said house is a wall constructed by the appellant and the weight of two rooms, verandah and third room is lying on this wall and the respondent has no concern with the same. It was pleaded that the length of the wall is 45¼ ft and 4½” in breadth. The following issues were framed by the learned Trial Court:- “1. Whether the wall in dispute is exclusively owned by the plaintiff?OPP. 1-A. Whether defendant along with his sons on 26.6.99 demolished wall belonging to the plaintiff near the entrance gate of her house and also constructed a pillar illegally and forcibly to mandatory injunction as claimed?OPD. 1-B. Whether defendant is entitled to mandatory injunction as claimed?OPP. 1-C. Whether mandatory injunction is not maintainable? OPP. 1-D. Whether plaintiff has no cause of action to file mandatory injunction? OPD. 1-E. Whether plaintiff has amended the plaint exceeding the permission granted to him if so its effect? OPD. R.S.A. No.177 of 2010 (O&M) -3- 2. Whether defendant has threatened to dismantle the wall?OPP. 3. Whether the plaintiff has no locus standi to file the suit? OPD. 4. Whether the suit is not maintainable?OPD. 5. Relief.” Learned Trial Court dismissed the suit and the appeal filed by the plaintiff was allowed and the suit of the plaintiff for mandatory injunction was decreed to the extent that the respondent be directed to reconstruct the demolished part of the wall in question to its original position as it existed prior to the demolition and against this finding of first Appellate Court, the defendant/appellant has filed this regular second appeal. Learned counsel for the appellant by way of regular second appeal has assailed the findings of the first Appellate Court and has contended that the same are perverse and contrary to the record. He prays for setting aside the impugned judgment on the aforesaid grounds. I have heard learned counsel for the appellant and have perused the impugned judgment. In the considered opinion of this Court, these are findings of fact, which have been recorded and no substantial question of law arises in the instant case, to warrant any interference by this Court in the regular second appeal. The existence or non-existence of a wall and its consequent demolition during the pendency of the suit, is purely a factual matter, which R.S.A. No.177 of 2010 (O&M) -4- has been determined by the Courts below. No ground to interfere in the absence of any substantial question of law. Dismissed. All pending applications are disposed of in view of the above. 20th January, 2010. (MAHESH GROVER) Monika JUDGE