REGULAR SECOND APPEAL NO.4825 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.4825 OF 2010 DATE OF DECISION: DECEMBER 17, 2010 Nathu Ram .... Appellant Versus Hari Ram and Others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Vishal Aggarwal, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Nathu Ram-plaintiff who was successful in the trial court but has been unsuccessful in the lower appellate court, has preferred the instant second appeal. The plaintiff-appellant alleged that he is owner in possession of house measuring 125 Square Yards. Prior to him, his father Surjan Ram was owner in possession thereof. Plaintiff has installed Tokka machine (fodder cutting machine) in it and has also placed some dung cakes and constructed manger and latrine in backside portion. Defendants have no right, title or interest in the suit house. But they threatened the plaintiff to dispossess the plaintiff from the house in dispute illegally and forcibly. The plaintiff sought permanent injunction against the said threatened actions of the defendants. Defendants very fairly admitted that plaintiff's father Surjan Ram was owner of the house, of which plaintiff and other heirs of Surjan Ram are now owners. However, defendants alleged that plaintiff is not owner or in possession of the vacant site lying on eastern and northern sides of the built house of the plaintiff. On the other hand, said vacant side is part of REGULAR SECOND APPEAL NO.4825 OF 2010 -2- Dharamshala. House owners had earlier opened their doors in the said site in the year 1978 but the same were closed on 06.08.1981 with consent of all concerned. However, again plaintiff opened a door in August 1998 towards vacant site without any right to do so. Plaintiff has also installed Toka machine and constructed manger and latrine in August 1998 i.e. just before the suit was filed on 10.10.1998. It was also pleaded that defendants belong to Rewari community and the site belongs to Dharamshala of the said community. Defendants never threatened to disposes the plaintiff from his house. But the plaintiff wanted to encroach upon vacant site of Dharamshala. Various other pleas were also raised. Defendant also filed counter-claim directing the plaintiff to close the door and to remove the construction of manger and latrine from the disputed site. Learned Additional Civil Judge (Senior Division), Nabha vide judgment and decree dated 20.08.2008 decreed the plaintiff's suit and dismissed the counter-claim of the defendants. First appeal preferred by defendant Nos.1, 2 and 4 has been allowed by learned Additional District Judge, Patiala vide judgment and decree dated 08.10.2010 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has filed instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the defendant No.1 himself and other witnesses of the defendants admitted that plaintiff-appellant is in possession of the disputed site. The contention is completely misconceived. There is no such admission by witnesses of the defendants including defendant No.1. On the contrary, the defendants REGULAR SECOND APPEAL NO.4825 OF 2010 -3- admitted that plaintiff is owner in possession of the built house. In fact there is no dispute relating to the house. The dispute is relating to vacant site adjoining the build house of the plaintiff on eastern and northern sides. The plaintiff-appellant wants to encroach upon the same. With this intention, the plaintiff has installed Tokka machine in the said site and has constructed latrine and manger. However, these acts allegedly committed just before the filing of the suit, do not amount to possession of the plaintiff-appellant over the vacant site in question. Defendants' witnesses have not admitted possession of the plaintiff over the said site, but have stated about aforesaid acts of the plaintiff-appellant. It has to be noticed with significance that the plaintiff in his cross- examination admitted that sale deed regarding the suit house is in his possession. However, the plaintiff has intentionally withheld the said sale deed. For not producing the said sale deed, which was very material piece of evidence, very strong adverse assumption arises against the plaintiff. It is manifest that if the said sale deed had been produced, it would have exposed the hollowness of the claim of the plaintiff. The said sale deed only could depict that only the house was purchased by the plaintiff's predecessor and that the plaintiff has no concern with the disputed vacant site lying on eastern and northern sides of the house of the plaintiff-appellant. The plaintiff has also not mentioned dimension of eastern side of the suit property in the plaint. The sale deed if produced would have depicted the dimensions of the property purchased by the plaintiff's predecessor. For the reasons aforesaid, I find no infirmity, much less illegality or perversity, in the finding of the lower appellate court against the appellant. Lower appellate court is the final court of fact. Finding recorded by the lower REGULAR SECOND APPEAL NO.4825 OF 2010 -4- appellate court does not call for interference in the instant second appeal. The said finding is supported by cogent reasons and cannot be said to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the second appeal. The appeal is devoid of merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 17.12.2010 'raj'