Punjab-Haryana High Court
Karan Singh vs Hoshiar Singh on 4 August, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No.3579 of 1998 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3579 of 1998 (O&M)
Date of Decision:04.08.2014
Karan Singh ... Appellant
Vs.
Hoshiar Singh ... Respondent
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. R.A. Sheoran, Advocate for the appellant.
Mr. R.S. Sangwan, Advocate for the respondent.
****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
**** RAMESHWAR SINGH MALIK J.
Present appeal, at the instance of defendant, is directed against the judgment of reversal, in a suit for injunction.
Brief facts of the case are that as per the undisputed site plan Ex.P-1, plaintiff was the owner of the plot marked as ABCD. It was the pleaded case of the plaintiff that he has left the open court yard ABJI for his own personal and exclusive use. Residential plot of the defendant-appellant was AGFE. Thus, dividing line between two plots was AE. It is also not in dispute that defendant was having his sitting room towards the dividing line i.e. AE. There was no ventilators or windows affixed by either of the parties in the common wall AE. However, since defendant demolished his sitting room and raised the fresh construction putting ventilators towards chowk of the plaintiff in the common wall AE, plaintiff was left with no other option Thakral Rajeev 2014.08.06 10:17 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3579 of 1998 (O&M) -2- except to file the present suit for injunction.
Notice having been issued, defendant appeared and filed his written statement denying the averments taken by the plaintiff.
On completion of pleadings of the parties, learned trial court framed the following issues:-
"1. Whether the plaintiff is entitled to any prohibitory and mandatory injunction as prayed for? OPP
2. Whether the suit is maintainable in the present form? OPD
3. Whether the plaintiff has no cause of action to file the present suit? OPD
4. Relief."
In order to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff failed to prove his case. Accordingly, his suit was dismissed vide judgment and decree dated 10.04.1997. Feeling aggrieved, plaintiff filed his first appeal which came to be allowed by learned Additional District Judge, Bhiwani, vide impugned judgment and decree dated 11.8.1998. Hence this appeal, at the instance of the defendant. The appeal was admitted vide order dated 18.8.1999 and the execution of the impugned decree was stayed. That is how, this Court is seized of the matter.
Learned counsel for the appellant submits that since the chowk (open space) shown as ABJI was a common property, he has every right to open his windows towards the chowk. He further submits that learned trial Court rightly dismissed the suit of the plaintiff but the learned Additional District Judge misdirected himself, while reversing the cogent findings Thakral Rajeev 2014.08.06 10:17 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3579 of 1998 (O&M) -3- recorded by the learned trial Court. He prays for setting aside the impugned judgment and decree passed by the learned Additional District Judge, by allowing the present appeal.
On the other hand, learned counsel for the respondent submits that a bare look at the site plan Ex.P-1 would show that the chowk ABJI was his own property. Defendant never claimed that he had been using the said chowk for any purpose. This open court yard was left by the plaintiff in front of his constructed house for his own use. Defendant has nothing to do with this chowk ABJI and he has no right to open ventilators or put windows in the common wall AE. He prays for dismissal of the appeal.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant one is not a fit case warranting interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
A bare comparison of the site plans put-forth by both the parties would show that the true picture has been given only in the site plan Ex.P-1. It is neither pleaded nor argued case on behalf of the defendant- appellant that he had also been using the chowk ABJI before the present litigation started. It is the common case of the parties that earlier there were no windows or ventilators in the common wall AE. Defendant demolished his sitting room and at the time of raising fresh construction, he put his ventilators and two windows in the common wall AE, for the first time. Thakral Rajeev 2014.08.06 10:17 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3579 of 1998 (O&M) -4- Although, defendant No.1 has also claimed that he has contributed in the expenditure for raising this common wall AE, yet there is no conclusive proof available on record to substantiate that aspect.
Be that as it may, this issue is not in serious dispute. The only contest between the parties is whether defendant was entitled to open his two windows in the common wall AE. Once the defendant failed to make out any case that he has any concern, even remotely, with the open court yard (Chowk) ABJI shown in the site plan Ex.P1, he had no right to tinker with the privacy of the plaintiff, by opening two windows in common wall AE, at the time of raising fresh construction. Having said that, this Court feels no hesitation to conclude that learned first appellate court had committed no error of law, while allowing the first appeal of the plaintiff and the impugned judgment and decree deserve to be upheld.
Before arriving at a judicious conclusion, the learned first appellate court rightly re-appreciated the facts of the case as well as the evidence led by the parties, so as to record his own cogent findings, in para 14 of the impugned judgment and the same reads as under:-
"However, it has come on record, that defendant has raised the construction of room 'ABFG' shown in site plan Ex.P1 and has also opened the windows at point 'H' towards the disputed land 'ABJI', after filing of the present suit, because it is very much clear in the report of Local Commissioner that the construction of room is new and fresh, it might be about one or two days old, while the plaster is also fresh. So obviously, the plaintiff has opened the windows towards the land of defendant for which he was not entitled to do so towards the suit land, as by opening of the such windows it has disturbed the privacy of the plaintiff which is not warranted. Defendant's counsel has stressed that he raised the construction of the room by Thakral Rajeev 2014.08.06 10:17 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3579 of 1998 (O&M) -5- demolishing old construction and the land 'ABJI' is the common court-yard. So, defendant has every right to open the window but I am not convinced with this contention. Certainly, defendant has got raised the construction in place, of old polly but it is nowhere in evidence that there was any window of said polly towards the disputed land rather he has opened these windows at the time of construction of rooms, freshly, for which he was not entitled to do so, as his stand is not getting support from any prescription of law and easement. Moreover, the matter pertaining to the title of the land 'ABJI' has already been discussed in earlier paragraph, according to which, it is the property of plaintiff, so, virtually defendant was not entitled to pen the windows towards the land of plaintiff and due to that plaintiff has got every right to get the windows closed by way of mandatory injunction and at the same time, he is also entitled to use the common wall 'AE' for placing the battens of the roof of his house. But learned trial court has committed the error by not appreciating the proper proposition of law and the fact of the case. So, the findings of the lower court under this issue is erroneous and it requires interference. Hence, the findings of the lower court under issue No.1 is reversed."
During the course of hearing, learned counsel for the appellant failed to substantiate any of his arguments. He also could not point out any jurisdictional error or patent illegality apparent on the record of the case in the impugned judgment passed by learned Additional District Judge. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine quo non for interference at the hands of this Court, while exercising its jurisdiction under Section 100 CPC.
No other argument was raised.
Considering the peculiar facts and circumstances of the case Thakral Rajeev 2014.08.06 10:17 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3579 of 1998 (O&M) -6- noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, instant appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 04.08.2014 rajeev Thakral Rajeev 2014.08.06 10:17 I attest to the accuracy and integrity of this document High Court Chandigarh