IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

121 RSA-2898-2022(O&M)

Date of decision: 07.04.2025 Shiv Narain ...Appellant(s)

Vs.

Dharamender ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Manish Giri, Advocate for Mr. Chanderhas Yadav, Advocate for the appellant.

Mr. Anmol Rattan S. Dhillon, Advocate for the respondent/caveator.

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NIDHI GUPTA, J.

The plaintiff is in second appeal against the concurrent judgments and decrees of the Courts below whereby the suit filed by the plaintiff seeking mandatory injunction, directing the defendant to remove the construction allegedly made by him above 5 feet; and possession of the land shown in the site plan; along with relief of permanent injunction restraining the defendant from raining any further construction thereupon, has been dismissed by both the Courts below.

2. The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellant as the “plaintiff” and the respondent as “the defendant”.

3. Case as pleaded by the plaintiff in the plaint is that he was co-owner in khewat No.465/411 khatauni No.552 khasra No.226/16 SUNENA

2025.04.09 11:32 measuring 0 kanal 11 marla. On 24.01.2013, the defendant had purchased plot measuring 211 square yards from Chotu Ram. Said house was part of khasra No.226/17 measuring 0 kanal 11 marla. Eastern side of the wall of the plaintiff is the western wall of the defendant. Chotu Ram had constructed his house after purchasing the same vide registered Sale Deed No.1282 dated 17.08.1982. As per the plaintiff, the Revenue Record pertaining to khasra Nos.226/16 and 226/17 could not be produced as the same has been destroyed in Jat Agitation. It was pleaded by the plaintiff that while purchasing the house from Chotu Ram on 24.01.2013, the defendant had illegally mentioned the eastern wall of the plaintiff as common wall. The defendant had threatened to raise construction thereupon for which he had no right. Even Panchayat was convened and it was decided that dispute could be resolved by demarcation of the respective plot. Thereafter, they had got their respective plots demarcated through Tehsildar Beri who submitted his report and it was found that defendant had illegally encroached about 6 feet of land of the plaintiff. The plaintiff had requested the defendant to remove the illegal encroachment and unauthorised possession from the property in dispute, however, the defendant had refused to do so. Hence, the present suit was filed by the plaintiff on 05.05.2016.

4. Upon notice, the defendant had resisted the suit by filing written statement. Besides formal objections, the defendant had pleaded SUNENA

2025.04.09 11:32 that the eastern wall of the property in dispute was constructed by Chotu Ram in 1982 and not by father of plaintiff in 1980 as wrongly stated in the plaint. In 1982 Chotu Ram had constructed the boundary wall himself on the land of the plaintiff and other co-sharers, with the consent of actual co- sharers and owners of property in dispute as they were not in a position to invest the money on boundary wall. It was decided between them that they would raise construction towards their side up to 7 inches on the wall by leaving 7-inch wall for another. The defendant never raised any construction, rather he took the possession of the house after execution of Sale Deed dated 24.01.2013 and since then, no construction whatsoever has been raised by him on the property in dispute. The Sale Deed was executed in favour of the defendant by the vendor by correctly mentioning the facts qua the joint wall. It was further pleaded that the plaintiff used to tether his animals in plot No.224, and the plaintiff was not using the property in dispute as gher. Demarcation of the plaintiff is not binding on the defendant as no intimation was given to him. It was denied that the defendant was in possession of any land of the plaintiff. Accordingly, dismissal of the suit was prayed for.

5. In replication, th