Regular Second Appeal No.2607 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-19.7.2010 Gurdev Singh son of Charan Singh ...Appellant Versus Bachan Singh alias Gurbachan Singh son of Parsa Singh & others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Sandeep Arora, Advocate for the appellant. M ehinder S ingh S ullar , J . The matrix of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, is that Gurdev Singh son of Charan Singh appellant-plaintiff and other proforma-respondents No.2 to 4 (hereinafter to be referred as “the plaintiffs”) filed the present suit seeking a decree of possession against Bachan Singh alias Gurbachan Singh son of Parsa Singh respondent-defendant (hereinafter to be referred as “the defendant”), inter-alia, pleading that Charan Singh son of Nathu (since deceased) was in possession of the property in dispute for the last more than 50 years without payment of any rent to the owners, which was gairmumkin abadi. The prolonged possession of 50 years without payment of any rent was stated to have matured into title of Charan Singh-deceased. 2. The plaintiffs claimed that after the death of Charan Singh, they inherited and became owners of the disputed property being his legal representatives. The defendant threatened to interfere in their physical possession, which necessitated them to file the earlier suit for permanent injunction. According to the plaintiffs, during the pendency of the said suit, despite temporary injunction order, the defendant encroached upon the portion of the land denominated by letters ABCD shown in the site plan attached with the plaint. The suit was Regular Second Appeal No.2607 of 2010 2 dismissed in default on 20.4.2000. As such, they could not avail the remedy of restoration of the said suit. 3. Levelling a variety of allegations, in all, according to the plaintiffs, they are owners but the defendant has illegally encroached upon the disputed portion of the property in dispute. They asked him to vacate the same, but in vain. It necessitated them to file the present suit. On the basis of aforesaid pleadings, the plaintiffs filed the present suit for a decree of possession against the defendant in the manner, indicated here-in-above. 4. The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit, locus standi, cause of action of the plaintiffs, non-joinder and mis-joinder of necessary parties. On merits, the defendant denied the ownership and previous possession of the plaintiffs over the suit property. It was claimed that he (defendant) is owner and in long possession of the same. Alternatively, it has also been pleaded that the defendant has become owner and in possession of the disputed property by way of adverse possession. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. 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. 6. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 7. The trial Court, after taking into consideration the evidence on record, dismissed the suit of the plaintiffs, vide impugned judgment and decree dated 2.6.2006. 8. Aggrieved by the judgment and decree of the trial Court, the Regular Second Appeal No.2607 of 2010 3 appellant-plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 6.11.2009. 9. The appellant-plaintiff No.1 still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 10. After hearing the learned counsel for the appellant-plaintiff No.1, after going through the record with his valuable help and considering the matter deeply, to my mind, there is no merit in the appeal. 11. However, the solitary argument of learned counsel that since the plaintiffs have inherited the property in dispute from Charan Singh, father of plaintiff Nos.1 to 3 and husband of plaintiff No.4, so, the Courts below ought to have decreed their suit, is not only devoid of merit but misplaced as well. 12. As is evident from the record that the plaintiffs have claimed that Charan Singh, their predecessor-in-interest, became owner of the disputed property by way of adverse possession and after his death, now they are owners and in possession of the same, which was stoutly denied by the defendant. In that eventuality, the burden of proof was on the plaintiffs, but they have miserably failed to prove their ownership and possession over it. The trial Court dismissed their suit, vide impugned judgment and decree dated 2.6.2006. The appeal filed by them was also dismissed by the Ist Appellate Court, vide impugned judgment and decree dated 6.11.2009, the relevant part of which is as under:- “Not only this, the appellant Surinder Singh, while appearing as PW.1, has admitted, though under the stress of cross examination, that Charan Singh, predecessor in interest of the appellants, was a tenant over khasra no.107 and land comprised in that khasra number belongs to Nirmal Sharma etc. It has also been admitted by him that Bachan Singh's house is constructed on khasra no.179/2 and a suit brought by him earlier for permanent injunction was dismissed in default. Further, another witness examined on behalf of the appellants, namely PW.2 Kartar Regular Second Appeal No.2607 of 2010 4 Singh has given a fatal blow to the case of the appellants by admitting in his cross examination that Gurdev Singh, Surinder Singh and Kuldip Singh appellants have separate houses and back of house of Surinder Singh adjoins the house of Bachan Singh (respondent). He has also admitted that both the houses i.e. one belonging to Surinder Singh, appellant, and the other belonging to Bachan Singh (respondent) were constructed in April, 1970. The compound wall pertaining to the house of Surinder Singh belongs to Bachan Singh and Surinder Singh appellant has not constructed any boundary wall which according to him was constructed by Bachan Singh (respondent). When this startling revelation were made by PW.2 Kartar Singh against the plea of the appellants, no effort was made by the appellants to re examine the witness to secure a explanation vis-a-vis the same. The statement made by Kartar Singh PW, a witness of appellants, runs contrary to plea of the appellants that the encroachment, if any, was made by the respondent in the year 1999. The disclosure made by PW.2 Kartar Singh to the effect that the house of Bachan Singh respondent was constructed in the year 1970 not only demolishes plea of the appellants but also strengthens the case of the respondent to the effect that the position that existed on the day of filing of the suit had been in existence for the last 30 years from that day i.e. filing of the plaint.” Meaning thereby, since the plaintiffs have completely failed to substantiate their ownership and possession of the suit land, so, the Courts below have rightly negatived their claim in this respect. 13. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff, in this relevant connection, have already been duly considered and dealt with by the Courts below. 14. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible Regular Second Appeal No.2607 of 2010 5 evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the plaintiffs have utterly failed to prove their ownership and possession of the suit land. Such pure concurrent findings of fact based on the 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 appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 16. In other words, 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, is involved in the second appeal, in view of 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, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiff. 18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 19.7.2010 Judge AS