R.S.A.No.868 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.868 of 2006 Date of Decision : 03.08.2009 Mrs. Paramjit Khosla and others ...Appellants Versus N.K.Khosla ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Deepak Arora, Advocate, for the appellants. Mr. Puneet Jindal, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for permanent injunction restraining the defendants from interfering in the peaceful possession or raising any stair case or construction in the portion of the plaintiff shown red in the site plan, was decreed. The plaintiff and defendant No.1 are brothers and owners of House No.EH-207, Nehru Garden Road, Jalandhar. Defendant No.3 is the son of defendant No.1 and defendant No.2 is the wife of defendant No.3. It is the case of the plaintiff that he and defendant No.1 mutually partitioned the property. As per the partition, ground floor shown red in the site plan fell to the share of the plaintiff, whereas, the first floor shown green in the site plan fell to the share of defendant No.1. Parties were entitled to 1/2 share of second floor and other to be raised subsequently. The grievance of the plaintiff is in respect of installation of iron R.S.A.No.868 of 2006 2 bridge at point AB of the first floor. The defendants have a house adjacent to the house in dispute. The bridge is constructed to join both houses. It is the case of the plaintiff that the said iron bridge has been constructed in violation of terms of agreement dated 3.11.1997, therefore, the defendants be directed to remove the iron bridge as also to close the window opening in the back courtyard of the plaintiff, which is against the terms of the agreement. In the written statement, the stand of the defendants was that the agreement was never finalized between the parties and defendant Nos.1 and 2 have got every right to install the iron bridge as there was no bar to enjoy the property in their possession. The defendants have not effected any right or interest of the plaintiff in the property in dispute. In evidence, the plaintiff examined himself as PW-1 and also examined his son Rohit Khosla as PW-2. On the other hand, defendant No.1 appeared as his own witness as DW-1 and also examined Rahul Khosla as DW-2. The plaintiff produced agreement as Ex.P-1, site plan bearing the signatures of plaintiff and defendant No.1 as Ex.P-2, site plan of the first floor and balcony as per the agreement, bearing signatures of the plaintiff and defendant No.1 as Ex.P-3 and site plan of ground floor as Ex.P-4. After considering the evidence led by the parties, the objection that the agreement (Ex.P-1) cannot be read into evidence as it is not registered, is found to be untenable, as the defendants have admitted the contents of the said agreement. As per the plaintiff, the agreement does not authorize the defendants to install iron bridge on the first floor. R.S.A.No.868 of 2006 3 Therefore, the learned trial Court decreed the suit directing the defendants to remove the iron bridge on the first floor. The said findings have been affirmed in appeal as well. Learned counsel for the appellants has vehemently argued that there is no condition in agreement Ex.P-1, which prohibit the installation of a iron bridge. It is contended that the possession of the first floor is exclusively with the defendant-appellants, therefore, it is open to the defendants to erect iron bridge, so as to make best use of the property of the defendants across the iron bridge. However, a reading of the agreement shows that in fact the contention of the appellants is counter to the recital in the agreement. The agreement clearly stipulates that no further construction is allowed to be raised. The reliance of the appellants on the stipulation that the construction can be raised on balcony as per the terms of the agreement, therefore, the erection of the iron bridge is permissible, is not tenable for the reason that what is permitted is in the construction opon balcony and not that the balcony can be extended by erecting an iron bridge outside the building line of the property. Since, the dispute is between the two brothers, the matter was allowed to be resolved by invoking mediation as well, which has remained unsuccessful. Even, on 31.7.2009, the matter was adjourned so as to explore the possibility of compromise, but the parties have failed to arrived at mutual settlement. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, R.S.A.No.868 of 2006 4 which may give rise to any substantial question of law for consideration of this Court. Dismissed. 03.08.2009 (HEMANT GUPTA) Vimal JUDGE