Regular Second Appeal No.1755 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.1755 of 2008 Date of decision: 14.07.2009 Baljit Singh son of Mohinder Singh resident of Village Nangli, Tehsil and District Amritsar. ..... Appellant. Versus 1. Satnam Singh son of Gurdit Singh, 2. Lakhbir Singh son of Naranjan Singh, both residents of village Nangli, Tehsil and District Amritsar. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. K.S. Rekhi, Advocate for the appellant. Mr. B.R. Mahajan, Advocate for the respondents. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 09.02.2008, Regular Second Appeal No.1755 of 2008 2 rendered by the Court of District Judge, Amritsar, vide which it accepted the appeal and set aside the judgment and decree dated 02.04.2007, rendered by the Court of Civil Judge (Junior Division), Amritsar, vide which it decreed the suit of the plaintiff for permanent injunction. 2. The brief facts of the case, are that the plaintiff claimed himself to be the owner in possession of the property, in dispute, on the basis of the sale deed dated 30.03.2001, executed by Parkash Kaur, in his favour. It was stated that the defendants, who had no concern with the property, in dispute, tried to take forcible possession of the same. It was further stated that the defendants were asked many a time, to admit the claim of the plaintiff, but to no avail. On their final refusal, to desist from their illegal designs, left with no alternative, a suit for permanent injunction was filed by the plaintiff. 3. The defendants, put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was averred that the suit was not maintainable; and that the plaintiff Regular Second Appeal No.1755 of 2008 3 concealed the material facts, and, as such, was not entitled to the relief of permanent injunction. It was stated that Parkash Kaur, mother of the respondent, was not in possession of the suit land. It was further stated that since she was not the owner in possession of the land, in dispute, she could not deliver/transfer the same, in favour of the plaintiff (now respondent). However, the remaining averments contained in the plaint were denied. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 2- Whether the present suit is not maintainable ?OPD 3- Whether plaintiff has not come to the Court with clean hands ?OPD 4- Relief.” 5 The parties led evidence in support of their case. After hearing the Counsel for the parties, and on going through Regular Second Appeal No.1755 of 2008 4 the evidence, and record of the case, the trial Court decided issue Nos.1 in favour of the plaintiff, whereas issue no.2 was decided against the defendants. The remaining issue was not pressed. Ultimately, the trial Court decreed the suit of the plaintiff. 6. Feeling aggrieved, against the judgment and decree dated 02.04.2007, rendered by the trial Court, the defendants (appellants) filed an appeal before the Appellate Court, at Amritsar, which vide its judgment and decree dated 09.02.2008 accepted the same, and set aside the judgment and decree of the trial Court. 7. Feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through and perused the record, carefully. 9. The Counsel for the appellant submitted that Parkash Kaur was the owner in possession of the land, in dispute. It was further submitted that she executed the sale deed, in favour of the plaintiff, as a result whereof, he Regular Second Appeal No.1755 of 2008 5 became the owner in possession thereof. He further submitted that the defendants having no concern with the land in dispute, tried to take forcible possession. He further submitted that the trial Court was right in coming to the conclusion that the plaintiff was owner in possession of the land, in dispute, and, thus, was right in decreeing the suit for permanent injunction. He further submitted that the Appellate Court was wrong, in accepting the appeal, and dismissing the suit. He further submitted that the Appellate Court, did not appreciate the evidence in its proper perspective , as a result whereof, miscarriage of justice occasioned. He further submitted that the judgment and decree of the Appellate Court, being illegal, were liable to be set aside and the judgment and decree of the trial Court be restored. 10. On the other hand, the Counsel for the respondents, submitted that the Appellate Court was correct in coming to the conclusion that the plaintiff was not in possession of any portion of the land, as his vendor was not the exclusive owner and in exclusive possession thereof. He further submitted that the Appellate Court was Regular Second Appeal No.1755 of 2008 6 right in accepting the appeal and dismissing the suit of the plaintiff. He further submitted that the Appellate Court properly appreciated the evidence while dismissing the suit of the plaintiff. He further submitted that the judgment and decree of the Appellate Court were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. Parkash Kaur claiming herself to be the exclusive owner and occupier of the land in dispute, executed the sale deed dated 30.03.2001, in favour of the plaintiff (now appellant ). In the jamabandi for the year 2000-01, Parkash Kaur had been recorded as co-owner of land bearing khasra No.18//5(7-19), which was part of the suit land, to the extent of ½ share. She was not recorded in exclusive possession of this khasra number. It is further evident from the jamabandi for the year 2000-01 that Parkash Kaur was recorded as co-owner to the extent of ½ share in khasra No. 18//6/2 (4-8) again a part of the Regular Second Appeal No.1755 of 2008 7 suit land, while Manjit Kaur, co-sharer therein, had been recorded as exclusive occupier thereof. So Parkash Kaur was not in exclusive possession of this khasra number too. From the jamabandi for the year 1995-96, it was also evident that Parkash Kaur and Manjit Kaur were co-owners in the suit land, to the extent of ½ share each, and Manjit Kaur had been recorded to be in exclusive possession thereof. Manjit Kaur was not made a party to the suit. From the aforesaid documents, it was, thus, proved that Parkash Kaur was neither the exclusive owner, nor in exclusive possession of the land in dispute. Once she was neither the exclusive owner, nor in exclusive possession of the land, in dispute, she could not deliver the exclusive possession thereof, in favour of the plaintiff, her vendee. It was, under these circumstances, a conclusion was recorded by the Appellate Court, that the plaintiff was not in possession of the land, in dispute, and the trial Court was wrong, in holding so, and granting the decree for permanent injunction. Even an application for additional evidence was filed, during the course of pendency of the appeal, which Regular Second Appeal No.1755 of 2008 8 was dismissed by the Appellate Court, in my opinion, for valid reasons, as the evidence sought to be produced, was very well within the knowledge of the plaintiff, but he did not produce the same at the relevant time. Under these circumstances, the submission of the Counsel for the appellant that the appellant was in possession of the property, in dispute, and the Appellate Court was wrong in holding otherwise, does not appear to be correct. The findings of fact, recorded by the First Appellate Court that since Parkash Kaur, the vendee of the plaintiff (now appellant ) was neither the exclusive owner nor in exclusive possession of the land, in dispute, she could not deliver the same, in favour of the plaintiff, and,as such, the plaintiff was not in exclusive possession of the land in dispute, being based on the correct appreciation of evidence and law, on the point, warrant no interference. The appellate Court rightly, accepted the appeal and set aside the judgment and decree, recorded by the trial Court. The judgment and decree dated 09.02.2008, rendered by the Appellate Court, are liable to be upheld. The submission of the Counsel for the Regular Second Appeal No.1755 of 2008 9 appellant, being without merit, must fail and the same stands rejected. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) July 14, 2009 Judge dinesh