Case Note & Summary
The appellants, legal heirs of the original plaintiff Om Parkash, filed Civil Suit No.426 of 1996 seeking mandatory injunction for removal of an alleged illegal encroachment in the form of a wall constructed by the respondents (defendants) on a common open space beyond the plaintiff's house, and permanent injunction restraining further construction. The Trial Court decreed the suit on 06.02.2006, directing removal of the encroachment and restraining further construction. The First Appellate Court dismissed Regular Civil Appeal No.137 of 2006 on 05.09.2007, upholding the decree. The defendants then filed Regular Second Appeal No.364 of 2008 before the Punjab and Haryana High Court. The High Court, by judgment dated 25.11.2011, disposed of the appeal with a direction to the defendants to pay ₹10,000/- with interest at 12% per annum, being half the expenditure incurred on construction, and held that on such payment, the wall would be treated as 'common' between the parties. The legal heirs of the plaintiff challenged this reversal before the Supreme Court. The Supreme Court allowed the appeal, holding that the High Court exceeded its jurisdiction under Section 100 of the Code of Civil Procedure, 1908, by modifying the concurrent findings of fact without framing a substantial question of law. The Court restored the decree of the Trial Court and First Appellate Court, directing removal of the encroachment.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court, while hearing a second appeal, cannot interfere with concurrent findings of fact unless a substantial question of law is involved. In this case, the High Court modified the decree without framing any substantial question of law, which is impermissible. (Paras 1-10) B) Property Law - Encroachment - Mandatory Injunction - Removal of Encroachment - Where the Trial Court and First Appellate Court concurrently found that the defendants had encroached upon the plaintiff's property by constructing a wall, the High Court erred in directing payment of compensation instead of removal of the encroachment. The decree for mandatory injunction for removal of the wall was restored. (Paras 1-10)
Issue of Consideration
Whether the High Court, in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, 1908, could modify the concurrent findings of the Trial Court and First Appellate Court regarding encroachment and direct payment of compensation instead of removal of the wall.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's judgment dated 25.11.2011, and restored the decree of the Trial Court and First Appellate Court directing removal of the encroachment.
Law Points
- Section 100 CPC
- substantial question of law
- concurrent findings
- mandatory injunction
- encroachment
- common wall
