RSA No. 1426 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1426 of 2005 Decided on : 16-02-2009 Darshan Singh and others ....Appellants VERSUS Sadhu Singh ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.D.P.S.Kahlon, Advocate for the appellants. Mr. N.S.Sitta, Advocate for the respondent. MAHESH GROVER, J The plaintiff-respondent filed a suit for permanent injunction seeking to restrain the appellants-defendants from interfering in his peaceful possession over the land which was described in the plaint. The appellants-defendants who contested the suit contended that on the suit property they had constructed a house which is owned and possessed by them and this property was exchanged with the father of the plaintiff-respondent on 15.7.1981. It was pleaded that father of the appellants-defendants had received property in Khasra No. 83 from father of the plaintiff-respondent and had purchased property in Khasra No. 82 from Rattan Singh on 20.2.1981. It was thus pleaded that they were in possession of properties in both Khasra Nos. 82 and 83. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is in possession over the suit property as claimed? OPP. RSA No. 1426 of 2005 2 2. Whether the defendants are in possession over the suit property having got it in an exchange from the father of the plaintiff as alleged?OPD. 3. Whether the plaintiff is entitled to the injunction as prayed for? OPP. 4. Relief. Learned Trial Court after appraisal of the evidence before it, dismissed the suit. In appeal, the judgment of the Trial Court was set aside and the suit was decreed to restrain the appellants from interfering in any manner in possession of the plaintiff-respondent in Gair Mumkin bara comprised in Khasra No.83 situated in village Pipal Majra. Dis-satisfied with the findings recorded by the First Appellate Court, the appellants have filed the present Regular Second Appeal. During the course of proceedings, this Court on 8th July, 2008 passed the following order:- “During the course of hearing, learned counsel for the appellants has stated that there is a pucca house existing on the site in dispute which belongs to the appellants and there is electricity connection in their name. However, there is a finding by the learned Lower Appellate Court that the plaintiff is owner in possession. The learned trial Court dismissed the suit only on the statement of one Malkiat Singh, plaintiff's witness, whereas this finding has been reversed by the learned Lower Appellate Court by relying upon the documentary evidence. RSA No. 1426 of 2005 3 In view of the statement of the learned counsel for the appellants that there exists a pucca house, in the interest of justice it is deemed appropriate to get this fact verified by a Local Commissioner. Accordingly, the Deputy Commissioner, Rupnagar, is directed to depute a Revenue Officer as Local Commissioner, not below the rank of Naib Tehsildar to demarcate the property of khasra no. 82/83 and also to report regarding the actual position existing at site. The Local Commissioner will report whether the appellants-defendants have constructed a pucca house, if so the area under the house and the khasra number where such house has been constructed. The appellants are directed to deposit Rs. 10,000/- as expenses of the Local Commissioner in the office of the Deputy Commissioner, Rupnagar. The Local Commissioner is also directed to serve notice to the parties and the inspection of the site shall be carried out in the presence of the parties. The Local Commissioner is directed to submit his report within two months.” On the basis of the above-said order, demaraction was carried out by the Local Commissioner and report was submitted to this Court which is to the following effect:- “According to Spot the Eastern Side of Khasra No. 82(0-3), 2 Gatthas and Northern side 0 Gatha length 18 Gatha there house of Sadhu Singh S/o Bishna and some portion is vacant. In other Khasra Nos 82 on the Western Side 44x13 there is Baramda and from that Eastern Side 37x24 ft is house RSA No. 1426 of 2005 4 and kitchen was constructed by Darshan Singh Appellant. No. 83(0-12), is lying vacant as per the spot and in the same Darshan Singh has constructed the boundary wall around the same and installed a iron gate on the Eastern Side. There is a way in Khasra No. 83. As per the revenue record Khasra No. 82 is owned by Darshan Singh & others copy of the Jamabandi is attached herewith and the owner of the Khasra No. 83 is Sadhu Singh s/o Bishna. The house of the appellant Darshan Singh was constructed in Khasra No. 82 and he produced the electric bill, which are in the name of Major Singh S/o Mohinder Singh and these bills were produced by Gurdial Singh and the same are attached herewith. The report is presented for necessary proceedings.” Learned counsel for the appellants contended that the findings recorded by the First Appellate Court are perverse and that it has ignored the evidence which is to the effect that they were owners in possession of the suit property on the basis of exchange and that they had constructed their house on it. Learned counsel for the respondent on the other hand contended that the findings of the First Appellate Court are perfectly in order as the exchange deed was not proved by the appellants and further Local Commissioner's report conclusively establishes his ownership regarding khasra no. 83 where the appellants have constructed a boundary wall unauthorisedly. After hearing learned counsel for the parties and perusing the impugned judgement and also the report of the Local Commissioner, to RSA No. 1426 of 2005 5 which no objection has been filed by the appellants, I am of the considered opinion that the findings recorded by the First Appellate Court do not warrant any interference. It is the specific case of the appellants that the land comprising in Khasra No.83 was in its possession and in their ownership on the basis of an exchange deed which was not established before the Court below. In this view of the matter, when the Local Commissioner report also establishes the ownership of the respondent, the appellants apparently have constructed a boundary wall un-authorisedly on it. Learned counsel for the appellants has not been able to demonstrate before this Court as to how they are in possession of the suit property. It was pleaded by the learned counsel for the respondent that possession was in fact taken by the appellants forcibly, after the filing of the appeal. Be that as it may, the bona fides of the appellants are seriously in question as it was their consistent case that they have constructed a house on property in Khasra no.83 and this was the case pleaded before this Court but the Local Commissioner's report is totally to the contrary. In this view of the matter, the findings of the First Appellate Court cannot be termed to be perverse so as to warrant any interference in regular second appeal specially when the findings of facts regarding the exchange was not established before it. No substantial question of law has been shown to have arisen for the determination of this Court and the appeal being devoid of any merit is hereby dismissed. February 16 , 2009 (Mahesh Grover) rekha Judge