IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1659 of 2008 Date of Decision: 30.4.2010 Bajrang Lal. ....... Appellant through Shri S.K.Bhardwaj, Advocate. Versus Vinod Kumar and others. ....... Respondent nos. 1 to 4 through Shri Arvind Bansal, Advocate. None for proforma respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. One of the defendants has filed this Regular Second Appeal against judgment and decree dated 26.2.2008 passed by the Additional District Judge Fast Track Court, Bhiwani (hereinafter described as `the first appellate Court') whereby the judgment and decree dated11.9.2002 of the Civil Judge (Junior Division), Bhiwani (referred to hereinafter as `the trial Court') were set aside. Plaintiff-Murlidhar (since deceased and now represented by his legal representatives, who are impleaded as respondent nos. 1 to 4) initially filed a suit for permanent injunction against the defendants- Bajrang Lal and Rohtash Kumar, seeking to restrain them from interfering in his peaceful possession, raising construction and alienating the plot in dispute bearing Unit No. W.218 as was depicted in red colour in the site plan attached with R.S.A.No.1659 of 2008 -2- .... the plaint. It was pleaded that this plot was owned and possessed by the plaintiff; that initially there was construction over the plot in dispute owned by his father wherein Sunder wife of Kesho Ram was inducted as tenant from whom possession was obtained in the year 1931; that father of the plaintiff died on 3.3.1947 and thereafter he started residing at Kaithal in connection with his business; that the building was old and dilapidated and, therefore, fell down; that the municipal authorities had issued a notice to him regarding affairs of the plot in dispute; that house tax and property tax were being initially paid by the father of the plaintiff and thereafter he was paying such taxes; that now defendant no.1 by claiming himself to be owner of the suit property, had entered into an agreement to sell with defendant no.2 and hence, the necessity to file the suit arose. Rohtash Kumar, who was arrayed as defendant no.2, was proceeded against ex parte while Jogeshwar son of Shri Ram Sarup was impleaded as defendant no.3 under the orders of the Court. In his written statement, defendant no.1 disputed the averments made in the plaint and pleaded that he is in actual physical possession of the suit property for the last more than 12 years and which possession is open, hostile and to the knowledge of the plaintiff. He, thus, pleaded adverse possession. Defendant no.3, in his separate written statement, averred that house nos. W.217 and W.218 were owned by Sahla Brahman in the year 1916; that a partition took place and Fateh Singh and Ram Parshad got 2/3rd share, i.e. W.218 and remaining 1/3rd, i.e. W.217 fell to the share of R.S.A.No.1659 of 2008 -3- .... widow of Matu; that on account of financial difficulties, Fateh Singh mortgaged with possession his share in favour of Chhaju Ram on 25.8.1920; that thereafter Fateh Singh again mortgaged his share in favour of one Ganpat on 6.12.1920; that since Fateh Singh failed to get the mortgage redeemed, Ganpat sold his mortgagee rights in favour of Chhaju Ram on 30.7.1926 for a sale consideration of Rs.300/-; that Chhaju Ram also could not make payment and, therefore, Ganpat sold his mortgagee rights in favour of Ram Swaroop son of Ram Narain on 3.8.1926; that by playing a fraud, Chhaju Ram executed a sale deed in favour of Har Narain qua 1/3rd share for a sale consideration of Rs.99/- in favour of Bakhtawari widow of Matu Ram, who was grand mother of defendant no.1; that Chhaju Ram and father of defendant no.1 succeeded in auctioning 1/3rd share on account of forged deed which which was purchased by Radha Kishan in the year 1934, who sold the same to Ram Sarup, father of defendant no.3 on 28.2.1950 and possession was also delivered at that time. The rest of the averments of the plaintiff were also denied and a prayer for dismissal of the suit was made. As many as seven issues were framed by the trial Court out of which issue nos. 1 & 2 are relevant, which are extracted below:- 1. Whether the plaintiff is owner in possession of the disputed house bearing No. W.218?OPP 2. If issue no.1 is proved, whether the plaintiff is entitled to permanent injunction as prayed for?OPP The trial Court concluded that the plaintiff failed to prove his ownership and possession over the disputed plot and, therefore, dismissed R.S.A.No.1659 of 2008 -4- .... the suit. Two appeals were filed against the judgment and decree of the trial Court – one by the legal representatives of the plaintiff and the other by defendant no.3. The first appellate Court reversed the findings of the trial Court on issue nos. 1 & 2 and accepted the appeal of the legal representatives of the plaintiff, whereas dismissed the appeal of defendant no.3. Feeling aggrieved, defendant no.1 has preferred the instant appeal. Learned counsel for the appellant has contended that the findings recorded by the first appellate Court are perverse and contrary to the record and are liable to be set aside. On the other hand, learned counsel for the legal representatives of the plaintiff has justified the findings which have been recorded by the first appellate Court and prayed for dismissal of the appeal. I have thoughtfully considered the rival contentions and have perused the impugned judgments. Exhibits P7 and P10, which are copies of the municipal records, show that father of the plaintiff was in possession of the plot in dispute. These documents pertain to the year 1970-71 to 1989-90. Exhibit P4/A which is a notice issued by the municipal authorities in the year 1948 reveals that it was sent to plaintiff-Murlidhar to remove the debris from the disputed plot which more or less conforms to the pleadings which he had set up. The adjoining plot no. W.217 has been shown to be belonging to R.S.A.No.1659 of 2008 -5- .... appellant-defendant no.1. Exhibit P11 is testimony to this and earlier, this plot was in the name of Nanga son of Matu Ram, father of the appellant. The identity of these two plots is distinct and converge on the pleadings of the parties. The plaintiff had been paying tax qua disputed plot which is also evident from the documents on record. In view of the aforesaid when clear findings of fact have been recorded by the first appellate Court that there are two distinct plots bearing nos. W.217 and W.218 which belong to the respective parties, I am of the opinion that it has rightly been inferred by the first appellate Court that plot in dispute bearing no. W.218 belongs to the plaintiff and the defendants had no right over the same. Having regard to the fact that pure finding of fact has been recorded by the first appellate Court while decreeing the suit of the plaintiff and the fact that there is no material indicating any infirmity therein, the impugned judgment and decree deserve to be upheld. Moreover, no question of law, much less a substantial question of law has been shown to have arisen for consideration of this Court. Accordingly, this appeal is held to be without any merit and is dismissed. All pending civil miscellaneous applications are also dismissed in view of the above. April 30,2010 ( Mahesh Grover ) “SCM” Judge