Punjab-Haryana High Court
Shakuntala Rani Deceased Through Her Lr vs Vasu Dev Khurana And Others on 17 March, 2025
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2025:PHHC:035560
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
115 RSA-932-2022 (O&M)
Reserved on : 19.02.2025
Pronounced on : 17.03.2025
Shakuntala Rani (deceased) through LR ....Appellant
VERSUS
Vasu Devi Khurana and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Sanjay Mittal, Advocate for the appellant.
ALKA SARIN, J. (Oral)
1. The present appeal has been preferred by the plaintiff-appellant
challenging the judgment and decree dated 09.09.2011 passed by the Trial
Court and judgment and decree dated 26.10.2021 passed by the First
Appellate Court whereby her suit for permanent injunction has been
dismissed.
2. Brief facts relevant to the present lis are that the plaintiff-
appellant filed the suit averring that she is owner in possession of a three-
storey shop with basement measuring 37.9 sq. yards situated at Sant Colony,
Railway Road, Bahadurgarh, District Jhajjar. In the year 1997-98 the
plaintiff-appellant constructed the three-storey shop with basement after
getting the site plan sanctioned from the Municipal Committee,
Bahadurgarh. According to the plaintiff-appellant the defendant-respondents
have their open land towards north and west of the building of the plaintiff-
appellant and have threatened to construct their shop and give support to
their roof by using the wall of plaintiff-appellant and also construct a
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basement. The plaintiff-appellant apprehended that her wall may collapse in
the rainy season and damage her building. Hence, the suit for permanent
injunction. In the written statement defendant-respondent No.1 raised
preliminary objections of maintainability, cause of action, not coming to
court with clean hands, etc. On merits it was the stand taken that the
plaintiff-appellant was not the owner of the building, and her construction
was against the bye-laws. It was the stand taken that the husband of the
plaintiff-appellant was an Ex-Municipal Commissioner, and he had got the
site plan sanctioned using his influence. It was stated that the plaintiff-
appellant had demolished the original common wall of 25 feet in length and
13.5" width and raised a common wall of 9" width by including 4.5" from
the wall of the defendant-respondents. The sanctioned plan of the plaintiff-
appellant also showed a common wall of 13.5" width. According to the
defendant-respondents the wall was a common wall to whose use there
should be no objection. The construction being undertaken would strengthen
the building and there was no risk involved. Replication was filed denying
the averments made in the written statement and reiterating those made in
the plaint.
3. On the basis of the pleadings of the parties the following issues
were framed :
1. Whether plaintiff is owner in possession of the
shop in question fully detailed and described in para
No.1 of the plaint ? OPP
2. Whether the plaintiff is entitled to the decree of
permanent injunction on the ground as alleged in the
plaint ? OPP
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3. Whether the present suit is not maintainable in the
present form ? OPD
4. Whether the plaintiff has no cause of action to file
the present suit ? OPD
5. Whether the plaintiff has not come to the court
with clean hands and not entitled to the discretionary
relief of injunction ? OPD
6. Relief.
4. The Trial Court vide judgment and decree dated 09.09.2011
dismissed the suit holding inter-alia that the plaintiff-appellant had not been
able to prove how much area was purchased since the original sale deed was
not produced and also that the wall was a common wall. Aggrieved by the
decision of the Trial Court, an appeal was preferred by the plaintiff-
appellant. On 11.10.2021 the First Appellate Court framed the following
issued no.1A :
1A. Whether the Wall marked with letters DAB is
exclusively owned and possession by the plaintiff ? OPP
The appeal of the plaintiff-appellant was dismissed by the First Appellate
Court vide judgment and decree dated 26.10.2021. Hence, the present
regular second appeal by the plaintiff-appellant.
5. The learned counsel for the plaintiff-appellant has contended
that both the Courts have erred in dismissing the suit of the plaintiff-
appellant. It is urged that the wall belonged solely to the plaintiff-appellant
and by putting load on it the defendant-respondents were causing damage to
the entire building and making it unsafe and therefore the suit deserved to be
decreed.
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6. Heard.
7. In the present case both the Courts have held that the plaintiff-
appellant failed to prove her ownership over her shop. No sale deed was
produced in evidence by her. The Courts have also held that the plaintiff-
appellant had failed to prove that the wall was exclusively owned by her and
was not a common wall. The shop of the defendant-respondents was already
in existence when the building plan of the shop of the plaintiff-appellant was
got sanctioned. Since the wall has been held to be a common wall, the
defendant-respondents have a right to use it in a reasonable way provided it
does not cause damage to the other co-owners of the common wall. The
plaintiff-appellant would have a cause only if it is proved to the satisfaction
of the Court that the construction to be raised by the defendant-respondents
would cause damage to the building of the plaintiff-appellant. No such
cogent and reliable evidence has been pointed out by counsel for the
plaintiff-appellant. In absence of any evidence in this regard, the plaintiff-
appellant is not entitled to the injunction restraining the defendant-
respondents from raising any construction on the common wall. In the face
of the findings recorded by both the fact finding Courts, there is no scope for
any interference by this Court. No credible and reliable evidence has been
highlighted by the counsel for the plaintiff-appellant for this Court to take a
contrary view from the one taken by both the Courts. In view thereof, no
fault can be found with the findings returned by both the Courts concerned.
No other point was argued.
8. In view of the discussion above, no question of law, much less
any substantial question of law, arises in the present case which requires
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determination by this Court. The appeal, being devoid of any merit, is
accordingly dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN )
17.03.2025 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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