JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant-plaintiff H.P. Housing and Urban Development Authority (hereinafter called the appellant), against Piar Singh, defendant-respondent (hereinafter called respondent) challenging the concurrent findings of the Courts below, whereby the suit and appeal filed by the appellant before the First Appellate Court were dismissed and counter claim of the respondent allowed. 2. Briefly the facts giving rise to the present appeal are that the appellant filed a suit against the respondent for injunction alleging that that the respondent, who was allottee of MIG House No.133 in Housing Board colony, has raised unauthorized construction in violation of the approved plan over house No. 133 and also encroached upon an area measuring 13.50 sq.mtrs. of the appellant. The averments, however, were denied by the respondent and the respondent has also maintained the counter claim. The appellant has averred that in the second week of October 1993 on the inspection of the Housing Board Colony Hamirpur by the official of the appellant, it was found that the respondent had raised certain unauthorized construction, as shown in site plan Ext. PW2/A in red ink on House No. 133, Housing Board Colony, Hamipur and the said construction is carried out by the respondent without the permission of the appellant. It was further the case of the appellant that the unauthorized construction was on 42.39 sqm and alongwith this the respondent has also encroached the land of the appellant to the extent of 13.50 s.q.mtr. as shown in the site plan Ext. PW2/A. As per the appellant when respondent failed to remove the construction and vacate the unauthorized encroachment, the respondent has no alternate, but to maintain the suit for permanent prohibitory injunction and mandatory Injunction. The respondent denied the averments in toto and also maintained counter claim against the appellant for issuance of mandatory injunction to the appellant to raise protection wall towards North side of the allotted house. The trial Court dismissed the suit of the appellant and allowed the counter claim of the respondent. The appellant maintained the first appeal and Learned Lower Appellate Court dismissed the appeal of the appellant. Hence the present appeal. 3. Regular Second Appeal is admitted on the following substantial question of law :- 1. Whether the first Appellate Court below misread, exhibit DW-1/B, misconstrued the terms of Higher Purchase Agreement i.e. Ext. The appellant maintained the first appeal and Learned Lower Appellate Court dismissed the appeal of the appellant. Hence the present appeal. 3. Regular Second Appeal is admitted on the following substantial question of law :- 1. Whether the first Appellate Court below misread, exhibit DW-1/B, misconstrued the terms of Higher Purchase Agreement i.e. Ext. P3 as well as the provisions of the H.P. Housing Board Act, 1972, its aims and objectives, duties assigned to its officers therein, building bye laws and regulations? 2. Whether the findings arrived at by the first appellate court below is perverse in the sense that departmental evidence produced in the form of witnesses and exhibits/documents have been belied without any substantial reason and the object of public interest have been kept aside, which would do much harm than good, to the public at large in case the judgment and decree passed by the first appellate court is upheld? 3. Whether the findings of the first Appellate Court below is erroneous/perverse as its conclusion are contrary to the evidence which states that the unauthorized construction was done, as the appellant/plaintiff had given its approval vide letter dated 16.03.1993 disregarding the evidence led by the appellant in the form of documentary evidence i.e. Ext. PW1/A to PW1/E 4. The learned counsel for the appellant argued that the findings of the Court below are liable to be set aside. The learned counsel appearing for the respondent has argued that the plaint which is the basis of civil suit nowhere mentions that Ext. PW2/A was prepared in the presence of the respondent and the respondent was ever associated at the time of preparation of Ext. PW2/A. The plaint is based on unilateral document Ext. PW2/A and the appellant has nowhere disclosed in the plaint that they had given permission to the respondent to raise additional construction and that the witnesses of the appellant while appearing in the witness box has categorically admitted that before filing of the suit permission to raise additional construction was granted to the respondent and in these circumstances, the finding of the Courts below are as per law and no substantial question of law is involved in the present appeal. 5. To appreciate the arguments of the learned counsel for the parties, I have gone through the record. 6. 5. To appreciate the arguments of the learned counsel for the parties, I have gone through the record. 6. To prove its case that the respondent raised unauthorized construction on his House No. 133 to the extent of 42.30 sqmtr and encroached the land of the appellant to the extent of 13.50 sq.mtr the appellant examined Sh. R.C. Katoch, the then Assistant Engineer of H.P. Housing Board, Hamirpur who appeared as P.W.1 and deposed that the construction of the respondent has not been done in accordance with the agreement. However, in cross-examination, he has deposed that the approved plan of the construction of the respondent is Ext. PW1/E and permission has been granted to the respondent on 16.03.1993 for doing additional construction in his house which is reflected in site plan Ext. PW1/E. The suit was filed before the trial Court on 23.3.1994. It is clear that the permission was granted to the respondent before filing of the suit and the construction when carried out as per permission there was no occasion for the appellant to file the suit before the court below for unauthorized construction. In other words, by permitting the respondent to raise additional construction as per Rules and by laws, the appellant is estopped from filing the suit. 7. Similarly PW-2 Sh. Rup Lal, Junior Engineer, Housing Board, Hamirpur in examination in Chief though deposed that the respondent raised unauthorized construction to the extent of 42.39 sqmtr and encroached the land of the appellant to the extent of 13.50 sqmtr, but in cross-examination he admitted that appellant has given permission to the respondent for raising additional construction. He has exhibited the site plan wherein the permission was granted as Ext. PW1/E. Further PW-2 admitted in his cross-examination that copy of permission for raising additional construction has not been shown in the site plan Ext. PW2/A on the basis of which the suit is maintained. He further admitted in crossexamination that construction allowed in the ground floor is for 9.31 sqmtr, but in the site plan Ext. PW2/A it is shown as 7.10 meter. Further, PW-2 admitted that Ext. PW1/E is correct and in Ext. PW2/A the details are not given. He has admitted that there is a hillock behind the house . He further admitted that there is no allotable land behind the house of the respondent. PW2/A it is shown as 7.10 meter. Further, PW-2 admitted that Ext. PW1/E is correct and in Ext. PW2/A the details are not given. He has admitted that there is a hillock behind the house . He further admitted that there is no allotable land behind the house of the respondent. He has admitted that Housing Board has given permission to other similarly situated persons also. From the statements of PW-1 and PW-2 it is clear that the respondent has raised the construction as per permission granted by the appellant. The averments of the respondents that there is a hillock at the back of the house towards North side and bigger stone, mud and water fall upon the land of the respondent and to protect the house and inhabitant of the house, the appellant is required to raise protection wall, is admitted by PW-1 Sh. R.C. Katoch in cross-examination to the extent that the land of the appellant on the north side of the house of the respondent is in the shape of the hillock. PW-1 has further admitted in the cross- examination that drain under that hillock had been destroyed and has not been repaired. This fact is also admitted by PW-2 Sh. Rup Lal, J.E. In cross-examination, PW-2 has shown ignorance about falling of earth and stones from the hillock on the house of the respondent. PW-2 on the other hand has admitted that in the Civil Writ Petition No. 2510/95, the Hon’ble High Court had appointed Local Commissioner and there is a direction to raise the protection wall. From this, it is clear that to protect the house of the respondent from the boulders and earth coming from the hillock which is owned by the appellant, the retaining wall is required to be raised. The respondent has specifically denied regarding raising of any unauthorized construction and the encroachment of the land as allotted by the appellant. DW-2 and DW-3 has proved the sale deed Ext. DW1/D. DW-2 has proved that when the respondent has given permission to the appellant to raise construction they could not maintain the suit. The appellant has nowhere proved on record any demarcation taken from the revenue expert to prove the encroachment. DW-2 and DW-3 has proved the sale deed Ext. DW1/D. DW-2 has proved that when the respondent has given permission to the appellant to raise construction they could not maintain the suit. The appellant has nowhere proved on record any demarcation taken from the revenue expert to prove the encroachment. No material is on record to show that any encroachment is made by the respondent, on the other hand the respondent has proved on record that Local Commissioner was appointed by the Hon’ble High Court to which the appellant has shown ignorance. In other words, they had not denied the fact that Local Commissioner was appointed. PW1 and PW2 admitted that the permission was granted to the respondent to raise additional construction, but this fact was not find mention in the plaint. The appellant has further not disclosed the facts in the plaint that the respondent is owning the land on free hold basis. The Hon’ble High Court of H.P. in a similar case RSA No. 208/2005 decided on 2.4.2013 has held that “when the plaintiff was required to prove the extent of the construction raised by the defendant beyond the plan by specifying the particular portion and the plaintiff has not led any tangible evidence to establish that expert has visited the spot and carried out the demarcation the suit deserves dismissal” 8. The net result of above discussion is that there is no evidence on the part of the appellant regarding unauthorized construction or encroachment by the respondent. On the other hand the respondent has proved on record that the appellant has failed to perform their duty which is legally cast on them under the regulation, rules and law. In these circumstances the appeal of the appellant is without merit and deserves dismissal alongwith heavy costs in the peculiar circumstances of the case. However, as the appellant is a statutory authority, I find that interest of justice will be met in case appeal is dismissed with cost of the present appeal. So, the appeal is dismissed alongwith costs in favour of the respondent and against the appellant.