R. S. A. No.4345 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No.4345 of 2009 (O&M) Date of Decision : October 08, 2010 Mandir Gautma Sati Makbuja Bradari Gautam and another .... Appellants Vs. Jagdish Lal Gupta and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sham Lal Bhalla, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 13140-C of 2009 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 17 days in filing the appeal is condoned. C. M. No. 13141-C of 2009 : Although strictly speaking, there are no sufficient grounds for condoning the delay of 130 days in re-filing the appeal, yet adopting liberal approach, delay of 130 days in re-filing the appeal is condoned. Main Appeal : Plaintiff Mandir Gautma Sati Makbuja Bradari Gautam R. S. A. No.4345 of 2009 (O&M) 2 (plaintiff no.1) and Sati Mata displayed in the aforesaid Mandir (plaintiff no.2) have filed the instant second appeal. Appellants filed suit against respondents i.e. Sanatan Dharam Girls High School (defendant-respondent no.4) and its office bearers/functionaries (defendants-respondents no.1 to 3) for permanent injunction restraining the respondents from interfering in peaceful possession of the plaintiffs-appellants over the suit property and from dispossessing them therefrom except in due course of law. The appellants alleged that they are in peaceful possession of the suit property as its owners. Mandir comprising of four rooms exists in the suit property. Annual functions of Gautam Bradari are also held there. Gautam Bradari is maintaining the suit property. The defendants have no concern with the suit property, but they threatened to interfere in the peaceful possession of the plaintiffs. Hence the suit. Respondents-defendants broadly controverted the plaint allegations. It was pleaded that the suit property consists of 9-10 shops, three rooms and boundary wall and there is no vacant space. It was alleged that out of 14 shops in all, 9-10 shops are in suit property of khasra no.421, whereas remaining shops are in khasra no.422 adjoining the suit property. The shops in khasra no.421 and khasra no.422 were got constructed by defendant no.4 school and its predecessor Dharamshala Ruldu Ram. The school is in possession of the shops through tenants. Defendants no.1 to 3 R. S. A. No.4345 of 2009 (O&M) 3 are office bearers of Management Committee of the school. Plaintiffs are not in possession of the suit property as owners. Land of khasra no.421 is owned by Provincial Government. Ruldu Ram constructed Dharamshala on it. Later on, Dharamshala was managed by Managing Committee, which constructed the shops and rooms. The Committee handed over the management and control of the property to the school through its committee. Various other pleas were also raised. In replication, the plaintiffs inter alia pleaded that as per revenue record, land underneath the 12 shops in the suit property is owned by Provincial Government. Same is in possession of the plaintiffs. The shops were constructed by the plaintiffs. It was orally agreed between Gautam Bradari (managing the Mandir) and members of the school that possession of the shops will remain with Gautam Bradari, but rent of the shops will be received by the school and out of it, 50% amount will be spent on welfare of the students of the school and 50% amount will be spent for development of the shops. However, Managing Committee of the school resiled from the said oral agreement. Plaintiff Mandir is recorded in possession of the suit property in the revenue record. Various other pleas were also raised. Another suit was filed by the school and its Managing Committee against Ramesh Gautam and Pawan Kumar (office bearers of the Mandir) seeking to restrain them from interfering in possession of the R. S. A. No.4345 of 2009 (O&M) 4 school over the suit property and from demolishing the same and from raising new construction. Learned Civil Judge (Senior Division), Fatehgarh Sahib, vide common judgment dated 12.08.2005, partly decreed both the suits. The suit filed by the appellants herein was decreed restraining the respondents from interfering in possession of the appellants over the Mandir existing in the suit property, as depicted in site plan Ex.P-36 (excluding 12 shops), illegally and forcibly except in due course of law. The suit filed by Mandir and its Managing Committee has been decreed partly restraining the defendants of that suit from interfering in possession of the school through its tenants over the disputed 12 shops existing in the suit property, as shown in site plan Ex.P-36, illegally and forcibly and from demolishing the same and from raising new construction there. Against judgment and decree of the trial court, two first appeals were preferred. Appellants herein preferred one appeal, whereas Ramesh Gautam and Pawan Kumar preferred the other appeal. Learned Additional District Judge, Fatehgarh Sahib, vide common judgment and decrees dated 22.08.2008, dismissed both the appeals. Feeling aggrieved, Mandir and Sati Mata have filed the instant second appeal as well as connected R. S. A. No. 4346 of 2009. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that R. S. A. No.4345 of 2009 (O&M) 5 the appellants are in possession of the 12 disputed shops and the school, after receiving rent thereof, was required to spend 50% of the rent amount for the development of the Mandir and therefore, suit filed by the appellants should have been decreed in toto regarding the 12 shops as well. I have carefully considered the aforesaid contention, but find no merit therein. In the plaint, the appellants pleaded that defendants have no concern with the suit property. However, in the replication, the appellants came out with a different and new version that by oral agreement, the school had been allowed to collect rent of the 12 disputed shops and 50% of the rent amount was to be spent on development of the Mandir. This plea in the replication is contradictory to the stand taken in the plaint by the appellants. Moreover, the appellants, by taking plea in the plaint that the defendants have no concern with the suit property, disentitled themselves to the discretionary relief of permanent injunction. In addition to the aforesaid, the appellants failed to substantiate their version that Gautam Bradari was to remain in possession of the 12 disputed shops and only rent was to be collected by the school, out of which 50% rent amount was to be spent on development of Mandir. There is only oral statement of Ramesh Gautam (PW-4) – Secretary of appellant Mandir. The said oral statement is not sufficient to establish the aforesaid stand of the appellants taken for the first time in the replication. On the other hand, R. S. A. No.4345 of 2009 (O&M) 6 Jagdish Chand – respondent no.1 appeared as DW-9 and stated that the school and its predecessor Dharamshala had rented out the 12 disputed shops to the tenants. The said version has been corroborated by seven tenants of the shops, who have been examined as witnesses by the defendants. In addition thereto, documents Ex.D-1 to D-19 have been proved in evidence to depict that tenants occupying the 12 disputed shops are paying rent to the school and previously, were paying rent to school's predecessor Dharamshala. The courts below have, therefore, rightly found that school is in possession of the 12 disputed shops through tenants. There is no illegality much less perversity in the finding of the courts below to this effect. Concurrent finding recorded by both the courts below in this regard is supported by cogent reasons. Lower appellate court is the final court of fact. No question of law, much less substantial question of law, arises for determination in the instant second appeal. There is no merit in the appeal, which is accordingly dismissed in limine. October 08, 2010 ( L. N. MITTAL ) monika JUDGE