R.S.A. No. 2919 of 2004 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2919 of 2004 (O&M) Date of decision: December 22, 2008 Pritam Singh ..Appellant v. Kirpal Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. P.S. Goraya, Advocate for the appellant. Mr. Vipin Mahajan, Advocate for the respondent. .. Rajesh Bindal J. The plaintiff is in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by him for permanent injunction restraining the respondent-defendant from interfering into peaceful possession of the house marked `CIEF' and `ABCGHI' Deori and also from raising any super structure over the roof of the Deori marked `ABCI' was dismissed. Briefly, the facts are that the appellant-plaintiff filed a suit claiming that he was owner in possession of the house marked as `CIEF'. There is a Deori marked `ABCGHI' on the western side of the house of the appellant, which was being used commonly by him and Ram Nath, whose house was situated on the southern side of the Deori. The suit came to be filed as the respondent-defendant was allegedly threatening to raise construction on some portion of the roof of the Deori. The suit was contested by the respondent-defendant disputing the location of the Deori. It was further pleaded that the house in possession of the respondent- defendant was inherited by him from Bhan Singh, his grand father. The same is a double storeyed house. In fact, there already existed a room on the first floor of the house of the respondent-defendant which was extended on the roof of the Deori and as the roof was in dilapidated condition, the respondent-defendant was merely replacing the same. Both the courts below did not find merit in the submissions made by the appellant-plaintiff, as he could not produce on record any evidence to show the ownership of the portion, the injunction regarding which was prayed. It further R.S.A. No. 2919 of 2004 [2] came on record that the construction, injunction regarding which was prayed in the suit had already been completed. The suit was accordingly dismissed. In appeal, the judgment and decree of the trial court was upheld. Learned counsel for the appellant submitted that the suit filed by the appellant-plaintiff should have been decreed considering the fact that in the earlier litigation regarding the same property, the respondent-defendant had admitted the ownership of the appellant-plaintiff and this fact was concealed by him while filing the written statement. On the other hand, learned counsel for the respondent- defendant submitted that the earlier suit was filed by him against the appellant- plaintiff and one Bhajan Kaur restraining them from closing the door,which was opening in the gali and the suit was dismissed considering the fact that the gate in question had already been closed much before filing of the suit. He further submitted that in the present litigation, the appellant-plaintiff had to stand on his own legs. He was raising a plea of ownership of the property which he failed to substantiate and further it was a suit for injunction and the fact on record was that there was already construction existing on the first floor of the Deori and the suit itself was not maintainable. Heard leaned counsel for the parties and perused the record. In the suit, the appellant-plaintiff raised a plea that he was owner in possession of the disputed portion. However, in the evidence nothing could be brought on record to substantiate that plea. The statement of appellant-Pritam Singh, who appeared as PW2, could not be read in evidence as he did not offer himself for cross-examination. In fact, it has been noticed by the learned lower appellate court that a note was given by the trial court at the bottom of his statement that the appellant-plaintiff refused to answer the question asked by the counsel for the defendant in his cross-examination. The site plan of the property (Ex. P1) having been produced by Pritam Singh in fact remained unproved, as his statement was not read in evidence. Besides that, there was no other evidence on record to show the fact that ownership of the property vested in the appellant- plaintiff. The appellant further failed to prove the fact on record that roof and the room over the Deori were not in existence at the time of institution of the suit. In fact, a Local Commissioner appointed by the court reported that Deori was a common passage being used by the appellant and one Ram Nath, as there is electricity meter belonging to the appellant installed on a wall in the Deori, but the first floor of the Deori was in possession of the respondent-defendant, which was under construction and there were signs of old construction. Keeping these facts in view and also the fact that in the earlier litigation, the issue under consideration R.S.A. No. 2919 of 2004 [3] before the court was not as is sought to be projected in the present case, I do not find that any illegality has been committed by the courts below in dismissing the suit filed by the appellant-plaintiff. The findings recorded are plain and simple findings of fact giving rise to no question of law, much less a substantial question of law. Accordingly, the present appeal is dismissed. (Rajesh Bindal) Judge December 22, 2008 mk