RSA No.4128 of 2009 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4128 of 2009 (O & M) Date of Decision: 09.08.2010 Bhim Singh and others .....Appellants Versus Randhir Singh and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Surinder Gandhi, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.12554-C of 2009 For reasons mentioned in the application, delay of 55 days in refiling the appeal is condoned. Main Appeal. Plaintiffs-Bhim Singh etc. are in second appeal, having lost in both the Courts below. Plaintiffs alleged that they are owners in possession of 1/6th share of joint land measuring 93 kanals 12 marlas. Out of it, the plaintiffs claimed their exclusive possession over 16 kanals land of killa Nos.22, 14 and 23 mentioned in paragraph 3 of the plaint. It was pleaded that defendants have no right, title or interest in the suit land, but they threatened to interfere in possession of the plaintiffs. Accordingly, the plaintiffs sought permanent injunction restraining the defendants from interfering in possession of the plaintiffs over the suit land and from dispossessing them therefrom. RSA No.4128 of 2009 (O & M) -2- The defendants denied the plaint allegations. It was pleaded that after partition, plaintiffs' father had 1/6th share in 77 kanals 12 marlas land. Defendants are cultivating land of khasra Nos.17 and 23 out of land mentioned in para 3 of the plaint. It was denied that plaintiffs are cultivating 16 kanals land mentioned in paragraph 3 of the plaint. Plaintiffs' brother Nahar Singh sold 4 kanals land of killa No.17 to defendant No.2 and Wazir Singh vide sale deed dated 28.05.1993. Nahar Singh also sold 2 kanals land of killa No.23 to defendant No.1. Defendants are thus co-sharers in the suit land along with plaintiffs and others. Learned Civil Judge (Junior Division), Rohtak vide judgment and decree dated 28.04.2008 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Rohtak vide judgment and decree dated 31.03.2009. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The plaintiffs did not produce any revenue record to depict their exclusive possession over 16 kanals land described in para 3 of the plaint regarding which land only the claim was pressed in the Courts below. In the absence of revenue record, it cannot be said that plaintiffs are in exclusive possession of the said land. On the contrary, plaintiffs intentionally pleaded wrongly in the plaint that defendants have no right, title or interest in the suit land. In the witness-box, Partap Singh-plaintiff No.3 while appearing as PW-1 RSA No.4128 of 2009 (O & M) -3- admitted that plaintiffs' brother Nahar Singh sold land to the defendants and further admitted that defendants are co-sharers in the joint land of which suit land is a part. Even Nahar Singh PW-2 admitted this fact. It is thus admitted case that defendants are co- sharers in the suit land. However, in spite thereof, the plaintiffs wrongly pleaded in the plaint that defendants have no right, title or interest in the suit land. On account of this false plea taken in the plaint, plaintiffs are disentitled to the relief of injunction. Even on merits, the plaintiffs have failed to prove that they are in exclusive possession of 16 kanals land mentioned in para 3 of the plaint as asserted by them. Learned counsel for the appellants contended that the plaintiffs paid irrigation charges for the said land to Tara Chand Lambardar PW-3 vide three receipts Exhibits PW-3/A, PW-3/B and PW-3/C. However, the said receipts have been duly considered by the Courts below and rightly discarded. Tara Chand PW-3 admitted in opening part of his cross-examination that he never visited the spot. Consequently, on the basis of receipts issued by Tara Chand, it cannot be said that plaintiffs are in exclusive possession of the aforesaid land measuring 16 kanals. There is concurrent finding by both the Courts below that the plaintiffs are not proved to be in exclusive possession of the land mentioned in para 3 of the plaint. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal so as to warrant interference in second appeal. On the other hand, defendants are also co-sharers in the joint land in which plaintiffs and others are also co-sharers. Consequently, the plaintiffs RSA No.4128 of 2009 (O & M) -4- without depicting their exclusive possession over any part of the joint land cannot seek injunction against the defendants-cosharers. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Lower appellate Court is the final Court of fact. Both the Courts below have assigned cogent reasons for non-suiting the plaintiffs. The appeal thus lacks of any merit and is accordingly dismissed in limine. 09.08.2010 ( L. N. MITTAL ) A. Kaundal JUDGE