RSA No.2020 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2020 of 2010 Date of Decision:18.08.2010 Surinder Kumar .... appellant Versus Harbans Lal .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Harish Goyal,Advocate for the appellant **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgement and decrees of the courts below whereby a suit for mandatory injunction and permanent injunction directing the defendant to remove the vertical gap mark BCEF in the site plan adjoining his shop mark ABCD in the site plan and further by removing wall EF and the platform BJKL with a further relief of permanent injunction restraining the defendant from causing any damage to the shop in any manner, was dismissed. As per the averments, plaintiff is the tenant under the defendant in the shop marked as ABCD. The shop situated towards the north side of the shop of the plaintiff was got vacated by the defendant from his tenant. The said shop and the shop under the tenancy of the plaintiff were having common wall. The defendant, after getting the adjoining shop vacated, demolished the roof of the said shop and constructed a new shop shown with mark EFGH by leaving a vertical gap BCEF towards the shop RSA No.2020 of 2010 2 of the plaintiff. The defendant also raised the level of newly constructed shop. The defendant also constructed a pucca platform 2' high above the adjoining old platform in front of the remaining adjoining shop belonging to the defendant. The defendant also constructed a new wall above the terrace level over the wall MN of a sufficient height. The vertical gap was 16' wide at the back and 29' wide at front having earth filling 1'-6" above the floor of the shop of the plaintiff and the ground level of the gap was about 15" below the newly platform top marked as BJKL. The vertical gap was open to the sky. Resultantly, the rain water falling in the open gap was penetrating into foundation of wall BC of the shop of plaintiff. The matter was reported to the police, which has taken no action. The defendant was bent upon to cause damage to the goods of the plaintiff lying in the shop as well as to the construction of the shop for which he had no right to do. Hence, the cause of action of the suit. Defendant field written statement taking preliminary objections. On merits all the allegations were denied. It was further stated that after getting the shop vacated from Ramesh Kumar, he had requested the plaintiff and other tenants and offered them that he shall reconstruct the shops symmetrically, for which the plaintiff and other tenants agreed. The defendant reconstructed the shop marked as EFGH and a space for construction of stair case was left by reducing the width of the shop EFGH to the extent of 1'-1' space in width was to be given by the two shops occupants i.e plaintiff and Tarsem Chand and both of them refused to provide space of 1' each in width due to which the stair case could not be got constructed by the defendant. Construction of platform in front of the newly constructed shop was damaged. However, other averments were denied and dismissal of the suit was prayed for. Both the courts below on appreciation of evidence, recorded a finding that the appellant has not been able to show that he has got a RSA No.2020 of 2010 3 right to ask the mandatory injunction for removing the vertical gap mark BCEF or the removal of the platform marked as BJKL. Moreover, while passing the impugned decree, the trial Court had ordered to make arrangement for the disposal of rainy water from the vertical gap shown with mark BCEF in the site plan attached within one month from the date of decree. Learned counsel for the appellant was unable to point out any perversity in the findings, so recorded by the courts below. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 18.08.2010 neenu