R. S. A. No. 4120 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4120 of 2009 Date of Decision : February 10, 2011 Smt. Krishna Devi and others .... Appellants Vs. Radha Kishan and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arvind Kumar, Advocate for Mr. Amit Kumar Jain, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Legal representatives of plaintiff no.2 Naresh Kumar have filed the instant second appeal having remained unsuccessful in both the courts below. Suit was filed by Ghanshyam Dass – plaintiff no.1/respondent no.2 and by Naresh Kumar – plaintiff no.2 (represented by appellants) against respondent no.1/defendant Radha Kishan. Plaintiffs' case is that plaintiff no.1 sold portion of the shop measuring 45' x 18' to the defendant vide sale deed dated 03.10.2000, but the defendant, after demolishing the R. S. A. No. 4120 of 2009 2 structure, encroached upon adjoining shop of plaintiff no.2 towards North. The defendant has raised construction over area of 18'6'' x 46'3'', instead of the area purchased by him measuring 18' x 45'. The plaintiffs sought permanent injunction restraining the defendant from raising further construction beyond the area of 18' x 45' purchased by the defendant. The defendant resisted the suit and inter alia pleaded that he has not encroached upon any area of the adjoining shop of plaintiff no.2 or of any other property. Plaintiff no.1 has no adjoining property on any side of the shop purchased by the defendant. There was common wall of plaintiff no.2 and the defendant depicted by letters CD in the site plan annexed with the plaint. The said wall is still existing at the spot. Area of the shop purchased by the defendant has increased because old walls on other sides were of more width having been built long back and now the walls of lesser width have been built. Various other pleas were also raised. Learned Civil Judge (Senior Division), Jind, vide judgment and decree dated 17.12.2007, dismissed the plaintiffs' suit. First appeal preferred by plaintiff no.1 and legal representatives of plaintiff no.2 has been dismissed by learned Additional District Judge, Jind vide judgment and decree dated 10.02.2009. Feeling aggrieved, legal representatives of plaintiff no.2 only have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. R. S. A. No. 4120 of 2009 3 Ajay Kumar – appellant no.3 (son of plaintiff no.2) appeared as PW-2 besides examining Draftsman Ajeet Singh as PW-1. However, Ajay Kumar – PW-2 has admitted that after sale of shop by plaintiff no.1 to the defendant, plaintiff no.1 is left with no concern with any property surrounding the shop sold to the defendant. Thus, plaintiff no.1 had no occasion to file the instant suit. Ajay Kumar also admitted that the defendant has raised new construction of the shop purchased by him, but intervening or common wall between the shop of plaintiff no.2 and the shop of the defendant has not been demolished by the defendant. In other words, the old common intervening wall is still existing there. Consequently, the question of any encroachment by defendant on the adjoining shop of plaintiff no.2 towards North does not arise when the intervening common wall is still existing. As regards increase in width of defendant's shop towards East or West, plaintiffs have no concern with the same as their property does not adjoin the defendant's shop towards East or West. Thus, the plaintiffs have been rightly non-suited because no property of the plaintiffs has been encroached upon by the defendant. Learned counsel for the appellants emphasized that area of the shop of the defendant has increased. However, the plaintiffs cannot have any grievance on this count unless the defendant has encroached upon any area of the plaintiffs' property. However, as already noticed in the preceding paragraph, defendant has not encroached upon any area of the R. S. A. No. 4120 of 2009 4 plaintiffs' property. Consequently, plaintiffs are not entitled to any relief. Concurrent finding of the courts below non-suiting the plaintiffs is fully justified in view of the reasons recorded herein before. The said finding, therefore, does not warrant interference in second appeal as the same cannot be said to be illegal or perverse in any manner. No right of the plaintiffs has been infringed by the defendant and therefore, plaintiffs are not entitled to any relief against the defendant. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. February 10, 2011 ( L. N. MITTAL ) monika JUDGE