RSA No. 4512 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4512 of 2001 Date of Decision: 13.10.09 Siri Kishan Dass adopted son of Sh. Gappu Mal, Vaish Aggarwal, resident of Rohtak. ... Appellant Versus Satish Gupta son of Sh. Jagat Ram Goyal, resident of H.No. 330, Ward No. 24, Jagdish Colony, Rrohtak. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.R. Mahajan, Advocate, for the appellant. Mr. Keshav Kataria, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 21.11.97, rendered by the Court of Civil Judge (Junior Division), Rohtak, vide which, it dismissed the suit of the plaintiff, and the judgment and decree, dated 23.08.01, rendered by the Court of Additional District Judge, Rohtak, vide which, it dismissed the appeal. 2. Siri Kishan Dass, plaintiff/appellant, claimed himself, to be the owner in possession of the land, bearing khasra No. 3012 of Mauja Rohtak, situated within the area of Jagdish Colony, Rohtak. It was stated that the defendant/respondent, without any right or title, in the RSA No. 4512 of 2001 2 property, in dispute, encroached upon a portion thereof, measuring 180 sq yards, and constructed a house. The defendant, was many a time, asked to hand over the possession of the encroached portion, but to no avail. Ultimately, a suit for possession, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was barred by time. It was further pleaded that the plaintiff was estopped, from filing the suit, by his own act and conduct. It was further pleaded that the suit was bad, on account of laches and acquiescence, on the part of the plaintiff. It was further pleaded that the plaintiff, had no locus-standi, to file the suit. It was further pleaded that, no cause of action, accrued to the plaintiff, to file the suit. It was stated that the defendant, was the bonafide purchaser of the suit property. It was further stated that since the suit property, was not identifiable, from the averments, made in the plaint, by the plaintiff, the defendant was entitled to special costs under Section 35-A of the Code of Civil Procedure. It was denied that the plaintiff, was the owner of the property, in dispute. It was further stated that the property, in dispute, was not a part of khasra No. 3012. It was further stated that, even if, there was any bachat land of khasra No. 3012, the same was not owned by the plaintiff, but vested in other proprietors. It was further stated that the plot, in dispute, was purchased, by the defendant, from one Ved Parkash son of Charan Dass, vide sale deed No. 4851/1 dated 17.12.81, whereon, he raised his construction, in the year 1982, and since then, he alongwith his family, RSA No. 4512 of 2001 3 was residing therein. It was further stated that the defendant, also got an electric connection No. J-1079, which was installed, in his house, on 17.11.82. It was further stated that the defendant had also been paying house-tax, in respect of the house, constructed on the suit property, since 1982-83. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is owner of the suit property bounded as described in the plaint? OPP (ii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of Additional District Judge, Rohtak, vide judgment and decree dated 23.08.01. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellant, submitted that the Courts below, recorded perverse findings, in holding that, the plaintiff, was not the owner of the property, in dispute, and, as such, was not entitled to the possession thereof. He further submitted that the Courts below, also RSA No. 4512 of 2001 4 recorded perverse findings, in holding that, the defendant, had not encroached upon a portion of the property, measuring 180 sq yards, forming part of khasra No. 3012. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the respondent, submitted that the Courts below, did not record perverse findings, to the effect, that the plaintiff, failed to prove his ownership, in respect of the property, in dispute. He further submitted that, on the other hand, the defendant, set up a title, on the basis of the sale deed dated 17.12.81, in respect of the property, in dispute, of which, he was in possession. He further submitted that, in the face of the title deed, set up by the defendant/respondent, in respect of the property, in dispute, of which, he was the owner in possession, the oral statement of the plaintiff, did not prove him, to be the owner thereof. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court, in the Regular Second Appeal, cannot interfere with the concurrent findings of fact, recorded by the Courts below, until and unless, it comes to the conclusion, that the same, were the result of misreading or misappreciation of evidence. Once the plaintiff, claimed that, the RSA No. 4512 of 2001 5 property, in dispute, over which, the defendant, was in possession, formed part and parcel of khasra No. 3012, it was, for him, to prove, by getting the same demarcated, from the Revenue Official. However, the plot, in dispute, was never got demarcated, by the plaintiff, so as to prove, that it formed part and parcel of khasra No. 3012. In the plaint, the plaintiff, claimed that, the defendant, had encroached upon 180 sq yards of the property, forming part of khasra No. 3012, but the site plan PA, which was got prepared by him, in respect of the property, in dispute, showed, that the encroachment, was only on 98 sq yards. It was, for the plaintiff, to prove his case. Only after the initial onus, was discharged by him, the defendant, could be asked to lead evidence to rebut the same. The concurrent findings of fact, recorded by the Courts below, that the plaintiff, failed to prove, that he was the owner of the property, in dispute; that no evidence was led by the plaintiff that the property, in dispute, formed part and parcel of khasra No. 3012; and that the plaintiff was not entitled to the possession thereof, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgments and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second RSA No. 4512 of 2001 6 Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 13.10.2009 (SHAM SUNDER) Amodh JUDGE