RSA No.2542 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2542 of 1985 Date of Decision: 28.02.2011 Kapoora .......Appellant Versus Makhmool and others .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. S.K. Chauhan, Advocate, for the appellant-Kapoora (defendant No.1). Mr. Gopi Chand, Advocate, for respondent No.1-Makhmool (plaintiff). None for respondent Nos.2 to 4. **** JITENDRA CHAUHAN, J. 1. Kapoora appellant has preferred this regular second appeal No.2542 of 1985 against the judgment and decree dated 13.5.1985 in Civil Appeal No.224 of 4.12.1984, which was dismissed by the Additional District Judge III, Faridabad. The First Appeal was preferred against the judgment and decree dated 27.11.1984 passed by Sub Judge I class, Palwal, decreeing the civil suit No.1074 of 25.11.1982 of the plaintiff- Makhmool against Kapoora appellant herein; and Karim Khan, Jawed Khan and Kalu- respondents 2 to 4 herein. RSA No.2542 of 1985 2 2. The facts: Makhmool plaintiff filed a suit for permanent injunction against the defendants that he is owner in possession of a residential house which is his ancestral property situated within the abadi deh of village Jalalpur, Tehsil Hathin, District Faridabad and the suit land is a inseperable part of his house. He is residing in the house. The plaintiff has collected wood bricks and other material. The defendants intend to dispossess the plaintiff from the portion in dispute of the house of the plaintiff which is shown in the site plan attached with the plaint. Hence this suit. 3. In their written statement, the defendants contested the suit on the ground that the plaintiff has no right, title or interest in the suit property; the suit land is property of the defendants and their possession is more than 100 years old; and the defendants have become owner of the suit property by way of adverse possession. 4. In replication, the plaintiff reiterated the pleadings. From the pleadings of the parties the following issues were framed by the trial court on 8.10.1983: 1. Whether the plaintiff is owner in possession of the residential house which is his ancestral property ? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the suit is not within time ? OPD 4. Whether the suit is hit by principles of resjudicata u/s 11 CPC OPD 5. Whether the plaintiff is stopped by his act, conduct and admission from filing the present suit ? OPD 6. Relief. RSA No.2542 of 1985 3 5. The trial court decided issues 1, 2 and 5 in favour of the plaintiff and against the defendants holding that the plaintiff is owner in possession of the house in which is his ancestral property, the suit of the plaintiff is maintainable and the plaintiff is not stopped by his act, conduct and admission from filing the present suit. Issue no.3 was decided in favour of the plaintiff and against the defendants holding that the suit is within time. Issue No.4 was decided in favour of the plaintiff and against the defendants holding that the principle of resjudicata is not applicable in this case. Accordingly, the learned trial court decreed the suit of the plaintiff. 5. The learned Ist appellate Court affirmed the findings of the trial court on all the issues specifically holding that the plaintiff is owner in possession of the suit land and dismissed the appeal of Kapoora, Karim Khan, Jadev Khan and Kalu. 6. Only Kapoora one of the defendants came up in this regular second appeal challenging the judgment and decrees of both the courts below. 7. Shri S.K. Chauhan, counsel for the appellant submits that the findings of both the courts below is erroneous on facts. The counsel for the appellants submits that the plaintiff has stopped the khar i.e. kachi nali natural water flow existing from the time immemorial in the locality thereby infringing the rights of easement. He further submits that the plaintiff/respondent no.1 had stopped the natural course of khar i.e. kachi nali which goes outside from the house of the plaintiff and it amounts to public nuisance. He further submits that the plaintiff/respondent no.1 had committed breach of easement rights of public and private persons and also caused public nuisance and thus had no right to file the present suit. RSA No.2542 of 1985 4 8. On the other hand, Shri Gopi Chand, learned counsel for respondent no.1 (plaintiff) submits that in the regular second appeal, the appellant defendant is setting up altogether a new case beyond the pleadings of the parties. There are concurrent findings of facts of both the courts below in favour of the plaintiff/respondent no.1, which this court may not interfere as there is no substantial question of law arises for determination in this regular second appeal. 8. I have heard the learned counsel for the parties and perused the record with their able assistance. 9. The only point for determination in this regular second appeal is as to whether both courts below have misread the evidence? 10. I have perused the question of law filed by the counsel for the appellant. I disagree with these points firstly on the ground that for the first time in the regular second appeal, the appellant defendant is setting up altogether a new case beyond his pleadings. No easement plea has been taken in the written statement. No issue was sought on easementry right in the trial court. No evidence was led on this right of easement. So, the right of public easement or private easement cannot be raised for the first time in regular second appeal beyond pleadings of the parties. 11. The plaintiff has brought on record a receipt marked as ‘A’ of the chulha tax of the disputed plot for the year 1982 paid to Jalalpur Gram Panchayat. The plaintiff examined PW2 Abdul Rahman and PW3 Raj Khan to prove his ownership and possession besides his own statement on oath. In his statement, defendant Kapoora ( appellant herein) stated that the land in dispute is part of khasra nos. 20 and 21. But no revenue record such as khasra girdawari or jamabandi has been placed on record by the defendant to prove his ownership or RSA No.2542 of 1985 5 possession. During the pendency of the suit a local commissioner visited the spot on 22.02.1983 and found the house of the plaintiff on the three sides of the site in dispute. The local commissioner found the plaintiff in possession of the site in dispute. There was some litigation in the year 1925-26 between the predecessors of the parties as is shown in Ex.D.1 to Ex.D.17, but none of the documents relates to the site in dispute. So, both the courts below on appreciating the oral and documentary evidence of both the parties, rightly came to the conclusion that the plaintiff Makhmool is owner in possession of the site in dispute. 12 In Kondiba Dagadu Kadam vs Savitribai Sopan Gujar and others, AIR 1999 Supreme Court 2213, the Apex Court held that the High Court in exercise of jurisdiction under section 100 of the Code of Civil Procedure has no power to interfere in the concurrent findings of fact, howsoever, erroneous they may be. 13 No other point or substantial question of law arises. Judgments and decrees of both the courts below are, hereby, affirmed. 14. This regular second appeal No.2542 of 1985 fails and is dismissed. ( JITENDRA CHAUHAN ) 28.02.2011 JUDGE atulsethi Note: Whether to be referred to reporter? Yes/No