Regular Second Appeal No. 3367 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3367 of 2010(O&M) Date of decision : August 24, 2010 Smt. Sudesh Gupta ....Appellant versus Jagdish Chand ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vinod S. Bhardwaj, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 9891.C of 2010 Allowed as prayed for. RSA No. 3367 of 2010 Sudesh Gupta daughter and legal representative of original plaintiff Kunti Devi since deceased has filed the instant second appeal having remained unsuccessful in both the courts below. Plaintiff filed suit against Jagdish Chand respondent-defendant alleging that defendant's shop is adjacent to shop and house of the plaintiff towards southern side. There was boundary wall of 5 feet height as depicted by letters ABCD in the site plan. The said wall was constructed by plaintiff's fore-fathers about 90 years before filing of the suit. Present width of the said wall is 11 inches. Defendant taking advantage of plaintiff's absence from the village removed a portion of the boundary wall and tried to raise wall of his first floor and to encroach upon the portion of Regular Second Appeal No. 3367 of 2010(O&M) -2- the plaintiff's wall illegally. Defendant placed his beam on the plaintiff's wall and also placed lintel of his shop. The plaintiff suffered damage of Rs 15,000/-. The defendant again tried to remove remaining boundary wall on roof of plaintiff's house but he was prevented from doing so. The plaintiff sought permanent injunction restraining defendant from raising construction on roof or parapet wall of shop/house of the plaintiff and from interfering in peaceful possession of the plaintiff thereon. The plaintiff also sought mandatory injunction directing defendant to remove his lintel from 3 inches wide newly constructed patti wall along the portion of plaintiff's wall. The defendant contested the suit and pleaded that there was agreement dated 8.8.1994 between the plaintiff through her son-in-law Rakesh Kumar and the defendant's predecessors Vilayati Ram and Lala Basasher Nath. As per agreement, the intervening wall was joint wall of the parties. Defendant had share of 9 inches width in the said wall. Plaintiff had already put her lintel and the remaining 9 inches of the width of the wall was of defendant. Defendant's predecessors Vilayati Ram etc. sold the property to Jagdish Singh who then sold the same to the defendant. Thereafter defendant entered into another written compromise dated 25.3.1997 with the plaintiff through her daughter Sudesh Kumari present appellant. As per this compromise also the intervening wall was joint and defendant had constructed his beam and also constructed 3 inches wide patti wall and the rest of the wall was of the plaintiff. Learned Civil Judge (Junior Division), Jagadhri vide judgment and decree dated 11.4.2007dismissed plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Regular Second Appeal No. 3367 of 2010(O&M) -3- Yamuna Nagar at Jagadhri vide judgment and decree dated 1.5.2010. Feeling aggrieved, plaintiff's legal representative has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the defendant removed his 9 inches wide portion of the intervening joint wall and has placed his lintel on the plaintiff's portion of 9 inches width of the common intervening wall. It was also contended that even out of the plaintiff's portion of 9 inches width the defendant removed 4½ inches width portion and then constructed 3 inches wide wall. The contention cannot be accepted because it is not even the pleaded case of the plaintiff. On the contrary as per plaintiff's own averments existing width of the wall was 11 inches. Consequently, it cannot be said that the defendant removed 9 inches width being his portion and also removed 4½ inches width from the portion of the plaintiff. On the contrary, the defendant has admittedly constructed 3 inches wide wall in his portion and placed his lintel thereon. Moreover, the defendant has proved both compromise pleaded by the defendant. In view thereof also the plaintiff has been rightly non-suited. The plaintiff has already placed her lintel on the intervening wall and the said portion has not been touched by the defendant. The defendant has admittedly placed his beam on 3 inches wide wall constructed by the defendant himself. Consequently, the plaintiff has no case. On the other hand, there is concurrent finding by both the courts below against the plaintiff-appellant. The said finding is based on proper appreciation of Regular Second Appeal No. 3367 of 2010(O&M) -4- evidence and cannot be said to be perverse or illegal so as to call for interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Learned counsel for the appellant contended that the appellant had moved application for additional evidence in the lower appellate court but the same has not been disposed of by the lower appellate court. However, this contention would also not help plaintiff-appellant. Learned counsel for the appellant states that the said application was moved for examination of some building expert to state about the condition of the wall. However, no such additional evidence is required when compromise was effected twice by the plaintiff once through her son-in-law and for the second time through her daughter who is present appellant. Even otherwise the plaintiff has herself pleaded that present width of the intervening wall was about 11 inches. It is also the pleaded case of the plaintiff that lintel of her house rests on the said wall. It is also un-disputed that the defendant has constructed 3 inches wide wall on which he has placed his beam and lintel. Consequently, there is no necessity of any additional evidence or any evidence of expert witness. For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L.N. Mittal ) August 24, 2010 Judge 'dalbir'