Regular Second Appeal No.734 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.734 of 2008 Date of Decision:- 18.7.2011 Municipal Council, Rohtak ...Appellant Versus Mange Ram and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Rajesh Lamba, Advocate for the appellant. Mr.Gaurav Sharma, Advocate for respondent No.1. Nemo for respondent No.2. Mr.Y.K.Sharma, Advocate for respondent Nos.3(i) to (iii). M ehinder S ingh S ullar , J . (Oral) Tersenessly, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, are that Mange Ram son of Ram Kumar Sharma and Vinay Arya son of Jaipal Arya respondent Nos.1 and 2-plaintiffs (for brevity “the plaintiffs”) filed the suit for a decree of permanent injunction, restraining Narsingh Dass son of Banwari Lal respondent No.3-defendant No.1 (since deceased), being represented by his legal representatives and appellant-defendant No.2 Municipal Council, Rohtak (for short “the defendant-MC”), from encroaching upon the municipal park in dispute, demarcated by letters ABCD, forming part of Khasra No.2616, inter-alia pleading that in the wake of scheme No.4-B, the portion in dispute was left open to be used as Municipal Park, but defendant No.1 intends to encroach upon the land of the park, to deprive the plaintiffs and other residents of the locality from their valuable fresh air, light and recreation etc., without any legal right. On the basis of aforesaid allegations, the Regular Second Appeal No.734 of 2008 -2- plaintiffs filed the suit for a decree of permanent injunction against the defendants in the manner indicated hereinbefore. 2. The defendant-MC filed the written statement, admitting the claim of the plaintiffs, whereas defendant No.1 contested the suit and filed his separate written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiffs. The case set up by the contesting defendant, in brief in so far as relevant, was that previously, he purchased the plot bearing Nos.31 and 32 from one Gopal Kumar and Suryakant, by virtue of registered sale deeds bearing Nos.1034/1 and 1038/1 (Ex.D4 & Ex.D5), much prior to the approval of scheme No.4-B. The earlier civil suit bearing No.320 of 1984 seeking a decree for possession filed by the contesting defendant, was decreed in his favour and he got the possession (Ex.D3) of the disputed plot bearing Nos.31 and 32 through the Court. The plots of the contesting defendant were stated to be in existence, much prior to the approval of scheme No.4-B. The Civil Court has already decided his (contesting defendant) ownership of the suit property. It will not be out of place to mention here that the contesting defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case as depicted in the impugned judgment. 4. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 5. The trial Court, after taking into consideration the entire evidence on record, dismissed the suit of the plaintiffs, by means of impugned judgment and decree dated 28.1.2006. 6. Although the plaintiffs did not challenge, but aggrieved by the Regular Second Appeal No.734 of 2008 -3- decision of the trial Court, the defendant No.2-MC, filed the appeal, which was dismissed as well, by the Ist appellate Court, by way of impugned judgment and decree dated 1.11.2007. 7. The appellant-defendant-MC still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. That is how I am seized of the matter. 8. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 9. Ex facie, the argument of the learned counsel for the appellant-MC that since the plot in dispute was meant/left for Municipal Park at the time of approval of scheme No.4-B, so, the Courts below fell in error in holding that the contesting defendant No.1 was owner of the property in dispute, lacks merit. 10. As is evident from the record that plaintiffs claimed that the disputed portion is the Municipal Park. On the contrary, according to the contesting defendant No.1, he has purchased the property in dispute, much prior to the approval of scheme No.4-B and is the part of plot bearing Nos.31 and 32. Thus, he is owner and in possession of the same. 11. It is not a matter of dispute that the contesting defendant earlier filed Civil Suit bearing No.320 of 1984, which was decreed in his favour. That decree was upheld even by this Court. The trial Court, after taking into consideration the entire material on record, has rightly held that defendant No.1 is owner and in possession of the property in dispute, which he has purchased, much prior to the approval of Scheme No.4-B. 12. Not only that, the decision of the trial Court was upheld by the Ist appellate Court, by virtue of impugned judgment dated 1.11.2007, the operative part of which is (paras 14 and 15) as under:- “DW1 who was official of the Town Planning Department stated that the open space in Ex.P2 was part of land comprised in khasra no.2616 Regular Second Appeal No.734 of 2008 -4- according to the record maintained by them, but during cross-examination he admitted that Ex.P2 was not prepared by him, that the letters ABCD were not shown in the original site plan; that he could not tell as to which particular khasra number this site plan pertained. Meaning thereby, the testimony of this witness also does not help in proving that the property which was shown as open space in Ex.P2 marked with letters ABCD was owned or possessed by the Municipal Committee or vested in the same. From the evidence placed on record, it is evident that with regard to the plots no.31 & 32 litigation had taken place between defendant no.1 Om Parkash etc. A perusal of Ex.D2, Ex.D3, Ex.D4 and Ex.D5 it stands proved that defendant no.1 had purchased plots no.31 & 32 comprised in khasra no.2616 and possession of the same had been ordered to be delivered to him after the civil litigation. It is also proved that the defendant no.1 had taken possession of the site in dispute by way of execution of warrant of possession. It was for the plaintiffs to prove that the suit property was a park or an open space left by Municipal Committee for the purpose of a park and was owned by the Municipal Committee, but evidence produced on record by the plaintiffs, however, could not be stated to be sufficient to prove this fact. Rather, evidence led by defendant no.1 was sufficient to prove that the disputed property was comprised in plots no.31 & 32 and had been purchased by him vide two sale deeds Ex.D4 and Ex.D5 respectively and he had also taken possession of these plots in pursuance of civil court judgment and decree in execution proceedings. In these circumstances, in my opinion the learned Lower Court had rightly decided issues no.1 & 2 against the plaintiffs and in favour of defendant no.1. In view of the above discussion, in my opinion, no infirmity or illegality can be found in the findings given by learned Lower Court in this regard. One more point can be taken into consideration. It was argued by learned counsel for the respondent no.3 that the appellant had no right to file this appeal and the appeal was not maintainable. To fortify his arguments, he placed reliance upon the authority cited as Deva Ram and another Vs. Ishwar Chand and another reported in (1995) 6 Supreme Court Cases 733. In this case it was held by Hon'ble Apex Court that appeal against mere findings is not maintainable. It was held that where while dismissing a suit, an adverse finding is recorded against defendant on some issue by trial court or where while dismissing the first appeal preferred by the plaintiff, the appellate court records a finding against the defendant, the defendant has no right to appeal/second appeal questioning Regular Second Appeal No.734 of 2008 -5- that finding. In this case, the suit of the plaintiff-respondents no.1 & 2 had been dismissed. No doubt findings had come on record that the suit property was not proved to be property of Municipal Committee. However, the plaintiffs did not prefer to file any appeal against the impugned judgment and decree. Rather, the appeal has been filed by defendant no.2 municipal committee. In view of ratio of law as laid down in above cited authority, the defendant no.2/appellant cannot be stated to have right to file appeal against the findings recorded by learned Lower Court to the effect that the suit property was not proved to be a municipal park by the plaintiffs and hence, on this ground the appeal cannot be stated to be maintainable and, therefore, this argument is answered accordingly in favour of respondent no.3 and against the appellant.” 13. Meaning thereby, both the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having analyzed the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this respect. 14. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant connection, have already been duly considered and dealt with by the Courts below. 15. In this manner, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, Regular Second Appeal No.734 of 2008 -6- is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 18.7.2011 Judge AS Whether to be referred to reporter?Yes/No