R. S. A. No. 3491 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3491 of 2009 (O&M) Date of Decision : March 05, 2010 Jagseer Singh .... Appellant Vs. Manpreet Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vivek Goyal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiff Jagseer Singh, who has been unsuccessful in both the courts below. Appellant Jagseer Singh filed suit against Amarjit Kaur and Harpreet Singh alleging them to be wife and son respectively of Bikkar Singh. Defendant no.2, however, alleged that correct name of defendant no.1 is Balwinder Kaur and not Amarjit Kaur. It was also alleged that correct name of defendant no.2 is Manpreet Singh and not Harpreet Singh. The suit was dismissed as withdrawn against defendant no.1 initially. Later on, the suit was also dismissed as withdrawn against defendant no.2. The plaintiff alleged in the plaint that he is in possession of the R. S. A. No. 3491 of 2009 (O&M) 2 two disputed shops continuously for four years and it was he, who had constructed the said shops. Defendants have no right, title or interest therein. Property lying on northern side of the disputed shops, belonging to Punjab Wakf Board, is in illegal possession of Bikkar Singh residing abroad (predecessor of defendants). The plaintiff had applied to Punjab Wakf Board to take the land underneath the shops on rent. Since property of the defendants adjoins the disputed shops, the defendants threatened to dispossess the plaintiff from the disputed shops. Defendant no.2, in his written statement, controverted the allegations of the plaintiff and raised counter claim. Defendant no.2 alleged that his father Bikkar Singh was in actual physical possession of the disputed site since the year 1989 having taken it on lease from Punjab Wakf Board. Bikkar Singh was held to be in possession of the same as lessee under Punjab Wakf Board in an earlier Civil Suit No.543 dated 10.05.1991 filed by Abdul Aziz and others against Bikkar Singh. Entire property measuring 1134 sq. ft. including the disputed site was held to be in possession of Bikkar Singh. After Bikkar Singh went abroad, both the defendants remained in possession thereof. The disputed shops and other shops were constructed by Bikkar Singh and defendant no.2. On 29.09.2003, defendant no.2 entered into agreement to mortgage the disputed shops in favour of the plaintiff for Rs.7,000/- and received Rs.5,000/- as earnest money. Mortgage deed was to be executed on or before 28.09.2004. Possession of the shops was given to the plaintiff on the basis of agreement to mortgage. However, the plaintiff failed to get the mortgage deed executed and registered as per agreement. Possession of the plaintiff over the disputed shops is now unauthorized and as trespasser. Defendant no.2, therefore, made counter claim for possession of the disputed shops. Since the plaintiff's suit was dismissed as withdrawn, only the counter claim of defendant no.2 was adjudicated upon. The plaintiff, in his reply to counter claim of defendant no.2, R. S. A. No. 3491 of 2009 (O&M) 3 controverted the averments made in the counter claim and reiterated the version pleaded in the plaint. Learned Civil Judge (Junior Division), Faridkot, vide judgment and decree dated 04.09.2008, decreed the counter claim of defendant no.2. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Faridkot, vide judgment and decree dated 13.03.2009. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant conceded that the disputed land belongs to Punjab Wakf Board. Admittedly, the plaintiff has not taken the same on lease or otherwise from Punjab Wakf Board. On the other hand, case of defendant no.2-respondent is that his father has taken the disputed land on lease from Wakf Board. It was so held in the earlier suit vide judgment Ex.P-X. Bikkar Singh was held to be in possession of 1134 sq. ft. area including the disputed land as lessee under the Punjab Wakf Board. Respondent has also produced other evidence including oral evidence that they had constructed the disputed shops and other shops. Mortgage agreement in favour of the plaintiff was also proved. However, the plaintiff did not lead any evidence whatsoever. Even the plaintiff himself did not step into the witness-box. Therefore, adverse inference arises against the plaintiff. Evidence of defendant no.2 stands unrebutted and was found sufficient to prove his case. Both the courts have recorded concurrent finding against the plaintiff and in favour of counter claimant. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. On the other hand, the plaintiff even withdrew his suit for permanent injunction realizing that he had no foot to stand on. The plaintiff also did not dare to enter the witness box to counter the claim of defendant no.2. Learned counsel for the appellant vehemently contended that R. S. A. No. 3491 of 2009 (O&M) 4 agreement to mortgage was not proved as permission for secondary evidence of the said agreement was granted on the condition that defendant no.2 had to prove existence and loss of the document, but defendant no.2 did not prove existence and loss of the agreement. However, even if agreement to mortgage is ignored, there is sufficient unrebutted evidence led by defendant no.2 to prove his case. Both the courts below have found the said evidence to be sufficient. Consequently, the concurrent finding recorded by the courts below cannot be interfered with in the instant second appeal because the said finding is not shown to be perverse or illegal. Learned counsel for the appellant also contended that defendant no.2 himself did not appear in the witness box, but examined his mother Balwinder Kaur as his attorney, but the Power of Attorney was not proved as only photostat copy thereof was tendered. However, this argument does not help the appellant because Balwinder Kaur herself also stood in the same position as defendant no.2 Manpreet Singh, they being wife and son respectively of Bikkar Singh, who was original lessee in possession of the disputed land. Consequently, whatever fact was in the knowledge of defendant no.2, was also in the knowledge of his mother Balwinder Kaur defendant no.1. Moreover, Balwinder Kaur stated that the original Power of Attorney had been lost and she produced photostat copy thereof. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. March 05, 2010 ( L. N. MITTAL ) monika JUDGE