R.S.A. No. 2122 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2122 of 1993 Date of Decision: 21.08.2009 1. Tehal Singh; 2. Balbir Singh; 3. Kulwant Singh; 4. Niranjan Singh; sons of Kapur Singh son of Narain Singh, residents of Wattu Tehsil Muktsar, District Faridkot. ... Appellants Versus 1. Jangir Singh son of Shingara Singh; 2. Lakha Singh son of Kashmir Singh; 3. Darshan Singh son of Kundan Singh; 4. Anoop Singh son of Kundan Singh; residents of Village Wattu, Tehsil Muktsar, Distt. Faridkot. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. O.P. Nagpal, Advocate, for the appellants. Mr. S.C. Pathela, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, R.S.A. No. 2122 of 1993 2 dated 16.04.91, rendered by the Court of Additional Senior Sub Judge, Muktsar, vide which, it dismissed the suit of the plaintiffs, and the judgement and decree dated 29.03.93, rendered by the Court of Additional District Judge, Faridkot, vide which, it dismissed, the appeal. 2. The plaintiffs filed a suit for specific performance, on the basis of the agreement to sell, which was decreed in their favour and against Banta Singh. In the execution proceedings, the Reader of the Court was appointed as a Local Commissioner, who executed the sale deed dated 17.07.86 of 6 kanals 2 marlas of land, in dispute, in favour of the plaintiffs (now appellants). The objections of defendants No. 1 and 2, in the execution application had been dismissed by the Court. The plaintiffs had taken the possession of the suit land, on 22.08.88, through Court. The defendants were many a time asked not to interfere into the peaceful possession of the plaintiffs, over the suit land, but to no avail. On their final refusal, to desist from their nefarious designs, left with no other alternative, a suit for permanent injunction, was filed. 3. Defendant No. 1, put in appearance, and filed written statement, wherein he took up various objections, and contested the suit. It was pleaded that the suit was not properly valued for the purpose of Court fee and jurisdiction. It was further pleaded that the suit was not maintainable. It was stated that the plaintiffs were not in possession of the suit land. It was denied that the possession was delivered to the plaintiffs through Court. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiffs are in possession of the suit land as alleged? OPP R.S.A. No. 2122 of 1993 3 (ii) Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD (iii) What is the effect of the pendency of revision petition of this suit? OPD (iv) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the plaintiffs/appellants, which was also dismissed, by the Court of Additional District Judge, Faridkot, vide judgement and decree dated 29.03.93. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law arise, in this appeal for the determination of this Court:- (i) Whether the Courts below misread and misappreciated the evidence and recorded perverse findings, that the plaintiffs were not put in possession of the land, in dispute, on the basis of the sale deed P1? (ii) Whether the Courts below, ignored the material piece of evidence, resulting into recording of perverse findings, that since the plaintiffs were not in possession of the land, in dispute, they were not entitled to the injunction prayed for? 10. The Counsel for the appellants, submitted that the Courts below, did not consider the evidence, on record, in its proper perspective, as a result whereof, they fell into an error in coming to the conclusion that the plaintiffs were not in possession of the land in dispute, on the basis of the R.S.A. No. 2122 of 1993 4 sale deed. He further submitted that an objection petition was filed in the execution proceedings, by the defendants, which was dismissed. He further submitted that even a revision-petition, was filed by the defendants which was dismissed, vide order D5, by this Court. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that since the vendor of the plaintiffs/appellants was not in possession of the land, in dispute, which was sold by him, in their favour, the question of delivery of possession by him, to them, did not at all arise. He further submitted that even it was evident from the sale deed P1, that the land which was sold, in favour of the plaintiffs, by their vendor, was already under mortgage and the same had not been redeemed. He further submitted that until and unless, the mortgage had been redeemed, or the possession had been taken from the mortgagees, in accordance with the provisions of law, the same could not be delivered to the plaintiffs. He further submitted that the Courts below, were right, in coming to the conclusion that the Roznamcha showing that the plaintiffs were put in possession of the land, in dispute, was a fabricated document. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. R.S.A. No. 2122 of 1993 5 Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. It is evident from the evidence, on record, that the plaintiffs filed a suit for specific performance, which was decreed and the Court appointed a Local Commissioner, who executed the sale deed P1, in their favour in pursuance of the aforesaid decree. It is also evident from the recitals contained in P1, the sale deed, that at the time of execution thereof, in favour of the plaintiffs, the land in dispute, was already under mortgage, with Darshan Singh and Anoop Singh, sons of Kundan Singh. It is further evident from the sale deed P1 that a sum of Rs. 7,000/-, out of the sale consideration was kept as amanat, with the plaintiffs, for redemption of the land in dispute. The sale deed is dated 17.07.86. The relevant jamabandi, for the year 1982- 83, is exhibit P4. In this document, also Banta Singh and Kehar Singh were recorded as mortgagors and Darshan Singh and Anoop Singh sons of Kundan Singh son of Hazara Singh, were shown, in cultivating possession as mortgagees. Once, as per the sale deed, the land was mortgaged with Darshan Singh and Anoop Singh, and as per P4 these mortgagees were in cultivating possession of the same, Banta Singh, vendor, who was not in R.S.A. No. 2122 of 1993 6 possession of the said land, could not deliver the same in favour of the plaintiffs, his vendees. Had Banta Singh been in possession of the land, in dispute, only then, he could deliver the same, in favour of his vendees, who are the plaintiffs. No evidence was produced, on record, that the land, in dispute, was got redeemed after making payment to the mortgagees. No evidence was also produced, on record, that the mortgagees surrendered their possession, in favour of the plaintiffs, or that possession of the land, in dispute, was got delivered to the plaintiffs in accordance with the provisions of law. Even, it is proved, from the evidence on record that Naranjan Singh, Virsa Singh, Tehal Singh, Bira and Kanta trespassed into the land, in dispute and caused grievous injuries, on the person of Sant Kaur and Jit Kaur, as a result whereof a case under Section 326 of the Indian Penal Code, was registered against them, vide FIR, copy whereof is D3. Reliance was placed on rapat Roznamcha, dated 22.08.88 copy whereof is P2, regarding the delivery of possession to the plaintiffs. Ramesh Kumar, Patwari, was examined as, PW3, in this regard. No doubt, in his examination-in-chief, he stated that the possession of the property, in dispute, was delivered to the plaintiffs. However, during the course of his cross-examination it was stated by him that no warrant of possession was received by him, as a result whereof, he put the plaintiffs in possession of the property, in dispute. It was further stated by him that he did not know, as to whether, he had prepared this report, while sitting in the village. Puran Singh, retired Kanugo, was examined as, PW4, who also stated that the possession was delivered to the plaintiffs vide the report, copy whereof is P2. During the course of his cross-examination, it was stated by him that the land of which the possession was delivered was under mortgage with Darshan Sihngh and R.S.A. No. 2122 of 1993 7 Anoop Singh. He further stated, during the course of his cross-examination, that they were not summoned to the spot at the time of allegedly giving the possession to the plaintiffs. Under these circumstances, the Courts below, were right, in coming to the conclusion, that the report P2 in the Roznamcha regarding the delivery of possession of the land to the plaintiffs, was a fabricated document. Since the mortgagees were in possession of the property, in dispute, they were required to be summoned, to the spot, but they were not summoned. It was, thus, apparent that such a report was prepared by the revenue staff, at the back of the mortgagees. The Courts below, thus rightly discarded this document, being not genuine. P5 is the order passed in the revision-petition, by this Court, on 05.04.89. It is evident, from this order, that when the decree holders were making attempt to get possession of the land, in respect whereof the decree was passed, in their favour, objections under Section 47 of the Code of Civil Procedure, were filed. Those objections were dismissed, holding that the subsequent vendees from the defendants could not claim protection of Section 41 of the Transfer of Property Act, as the sale in their favour was hit by the provisions of Section 52 of the Act. From P5, it was not proved that the plaintiffs were put in possession of the land, in dispute. 13. The concurrent findings of fact, recorded by the Courts below, that the plaintiffs could not be delivered the possession of the land, in dispute, the same being under mortgage, at the time of sale thereof; that the mortgage had not been redeemed; that the plaintiffs were not in possession of the land; that the rapat Roznamcha P2, was a fabricated document; and that the plaintiffs were not entitled to the injunction prayed for, being based on the correct appreciation of evidence, and law, on the point, do not suffer, R.S.A. No. 2122 of 1993 8 from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the appellants, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial questions of law, depicted above, are, answered against the appellants. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 21.08.2009 (SHAM SUNDER) Amodh JUDGE