REGULAR SECOND APPEAL No.4764 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4764 OF 2010 DATE OF DECISION: JANUARY 3, 2011 Sukhdev Raj & another .... Appellants Versus Kamal Kumar & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Veneet Sharma, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) Legal heirs of plaintiff Shri Ram (since deceased) having failed in both the courts below are in second appeal. Shri Ram plaintiff filed suit against respondents/defendants Kamal Kumar etc. seeking declaration that the plaintiff is owner in possession of house site No.39 measuring 5 Marlas 5 Sarsais as described by boundaries in the plaint and shown in red colour by letters ABCD in site plan attached with the plaint and that the defendants have no right, title or interest in the said suit property. Plaintiff also sought permanent injunction restraining the defendants from interfering in plaintiff's possession over the disputed site. The plaintiff alleged that on partition of the country, he migrated from Pakistan and was allotted the disputed house site No.39 being evacuee property and was also delivered possession thereof. He constructed a chhan (grass shed) there and is owner in possession of the suit property since then. The aforesaid shed has since fallen down. Plaintiff is tethering his cattle and storing fodder and fuel in the suit property. The defendants intended to take forcible possession thereof. Thereupon plaintiff made application to Assistant REGULAR SECOND APPEAL No.4764 OF 2010 -2- Collector, who after visiting the spot verified possession of the plaintiff over the disputed site. However, the defendants still continued to threaten the plaintiff to interfere in his possession, necessitating the filing of the suit. The defendants controverted the plaint allegations. It was pleaded that the site plan annexed with the plaint does not depict the correct factual position. It was pleaded that disputed site is part of khasra No.86 owned and possessed by Bua Lal father of defendants No.1 and 2. Defendant No.3 and 4 have no right, title and interest in the suit property. Various other pleas were also raised. Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 18.12.2001 dismissed the plaintiff's suit. First appeal preferred by legal representatives of the plaintiff has been dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 27.08.2010. Feeling aggrieved, legal representatives of plaintiff have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that along with first appeal, appellants had moved application for additional evidence which was, however, not decided by the lower appellate court and, therefore, judgment of the lower appellate court deserves to be set aside. Reliance in support of this contention has been placed on two judgments of this court in the case of Ashok Kumar Vs. Surinder Kumar, 2005 AIR (Punjab) 263 and in the case of Tehal Singh Vs. Harnam Singh, 2000(1) PLR 260. I have carefully considered the aforesaid contention which is apparently very attractive. However, on proper scrutiny, the contention does REGULAR SECOND APPEAL No.4764 OF 2010 -3- not help the appellants. Perusal of record of the lower appellate court reveals that the appellants did move application for additional evidence along with first appeal preferred by them. However, it appears that at the time of final arguments before the lower appellate court (heard more than eight years after the filing of the first appeal), learned counsel for the appellants did not refer to the application for additional evidence and, therefore, the same was not adjudicated upon by the lower appellate court. However, even if the proposed additional evidence is taken into consideration, it does not help the appellants in any manner. By way of additional evidence, the appellants wanted to prove report of Tehsildar made on application moved by the plaintiff before Tehsildar/Assistant Collector. Persual of the said report of Tehsildar reveals that plaintiff had moved application for demarcation of house site No.39 which stood allotted to him. However, it is mentioned in the report that record of the said site was not available either with Patwari or in the office of Tehsildar. Consequently, Tehsildar observed that demarcation could not be carried out. The disputed site is situated inside Lal Lakir i.e. in village Abadi. It is thus manifest from the report itself that Tehsildar or Assistant Collector did not demarcate plaintiff's house site No.39. Consequently, even on the basis of the aforesaid report, it cannot be said that disputed site claimed by the plaintiff in the suit is house site No.39. Learned counsel for the appellants vehemently contended that Tehsildar in his aforesaid report has concluded that plaintiff was in possession of the disputed site and, therefore, plaintiff is proved to be in possession thereof. The contention cannot be accepted. Tehsildar had no power or authority under any law to adjudicate as to who is in possession of the disputed site situated inside Lal Lakir of the village. There was also no lis REGULAR SECOND APPEAL No.4764 OF 2010 -4- pending before the Tehsildar to determine this question. On the other hand, application had been moved by plaintiff to Tehsildar for demarcation of house site No.39. However, in the absence of record regarding the said site, Tehsildar reported that demarcation could not be carried out. In these circumstances, there was no occasion for the Tehsildar to conclude that plaintiff is in possession of the disputed site. Here it would not be out of place to notice that persons present at the spot at the time of visit of Tehsildar stated about possession of different parties over the disputed site. In view thereof, the opinion or conclusion of the Tehsildar that plaintiff was in possession of the disputed site cannot be attached any weight. On the contrary, Civil Court has to adjudicate upon this question regarding possession on the basis of evidence led in the suit. Report of Tehsildar regarding possession of the plaintiff has no probative value. It is also worth mentioning that the disputed site is a vacant site. Consequently, its possession goes with its ownership. The plaintiff has, however, miserably failed to prove that the disputed site is house site No.39. Consequently the plaintiff could not be said to be owner of the disputed site and as a necessary consequence, he also could not be said to be in possession thereof. Even his alleged acts of tethering cattle and storing fodder and fuel would not amount to possession of the plaintiff over the disputed site. There is another significant aspect of the matter. Towards East of the disputed site, there is alleged to be khasra No.86 which is admittedly owned and possessed by defendants No.1 and 2. The plaintiff has not produced in evidence any aks sazra or other map to depict that towards West of Khasra No.86, there is house site No.39 which stood allotted to the plaintiff. In this view of the matter also, the plaintiff could not said to be either owner or REGULAR SECOND APPEAL No.4764 OF 2010 -5- in possession of the disputed site. There is concurrent finding by both the courts below against the appellants. Said finding is based on appreciation of evidence and does not suffer from any illegality and perversity so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 03.01.2011 'raj'