RSA No. 448 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 448 of 2009 Date of Decision: 16.09.2009 Mam Raj son of Sh. Basanta Ram, resident of village Kunchandu, Tehsil Jagadhri, District Yamunagar, through GPA Roshan Lal. ... Appellant Versus 1. Sat Pal; 2. Dharampal; 3. Yash Pal; 4. Narinder; all sons of Sh. Prem Chand, residents of village Kulchandu, Tehsil Jagadhri, District Yamunanagar. 5. Roshan Lal son of Banarsi, resident of village Kulchandu; 6. Shyam Lal; 7. Kaka; both son of Banarsi; residents of village Kulchandu, Tehsil Jagadhri, District Yamunanagar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rakesh Kumar Sharma, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated RSA No. 448 of 2009 2 08.06.06, rendered by the Court of Civil Judge (Junior Division), Jagadhri, vide which, it dismissed the suit of the plaintiff/appellant, and the judgement and decree dated 28.07.08, rendered by the Court of Additional District Judge, Yamunagar at Jagadhri, vide which, it dismissed the appeal. 2. The plaintiff/appellant, claimed himself to be the owner in possession of the property, in dispute, marked by letters ABCDEF, shown, in the site plan, situated in the abadi deh of village Kulchandu, which was being used, by him, for residential purpose and other domestic purposes, without any interference since the time of his forefathers. It was stated that the plaintiff, had also constructed one room and two chhans, in the suit property, for the purpose of putting goharas, bhusa (hay), koops, kurari and tethering cattle. He had also planted several poplar trees, in the suit land. One kitchen as well as stair case, also existed, in the suit property. It was further stated that, the defendants, were quite strangers, qua the suit land, and had no property, adjoining it, but they, in collusion with each other, threatened to forcibly dispossess the plaintiff, therefrom. The defendants, were many a time, asked not to interfere, into the peaceful possession of the plaintiff, over the suit land, but to no avail. Ultimately, a suit for permanent injunction, was filed. 3. Defendants No. 1 to 4, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit, was not maintainable. It was further pleaded that the plaintiff, had no cause of action, to file the suit. It was further pleaded that the plaintiff, had concealed material facts, from the Court. It was stated that the correct site plan, was not filed by the plaintiff. It was further RSA No. 448 of 2009 3 stated that the property shown, by letter ABCDEF, did not exclusively belong to the plaintiff. It was further stated that the property shown to be in possession of defendants No. 5 to 7, did not belong to them. It was further stated that the property, measuring 70', in north, 85', in south, 10', in east, and 50', in west, was in possession of defendants No. 1 to 4, shown by letters ABCDEF, in which, they had constructed khurli, two kurdies, goharas etc. It was further stated that the dimensions of the property, in dispute, given by the plaintiff, in the plaint, were also not correct, as he was, in possession of the lesser area than shown, in the site plan. The remaining averments, were denied, being wrong. 4. Defendants No. 5 to 7, also filed a separate written statement, stating therein, that they had no concern with the the property, in dispute. It was further stated that towards the western side of the property, in dispute, there existed their abadi land. It was further stated that the width of the land, belonging to defendants No. 5 to 7, from east to west, was 38 feet, and towards South, was 88 ft. It was further stated that the plaintiff, had wrongly given the length of the suit land, at points A and B. It was further stated that the land, belonging to defendants No. 5 to 7, was being used, by them, for the purpose of placing goharas, firewood etc. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is having possession over the suit property, as alleged? OPP (ii) If the above issue is proved in affirmative, whether the plaintiff is entitled to the relief of permanent injunction sought? OPP (iii) Whether the suit is not maintainable? OPD (iv) Whether the plaintiff has not come to the Court with clean hands? OPD RSA No. 448 of 2009 4 (v) Relief. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 7. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of Additional District Judge, Yamunagar at Jagadhri, vide judgement and decree dated 28.07.08. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 9. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully. 10. The Counsel for the appellant, submitted that despite admission, in the written statement, that the plaintiff, was in possession of the property, in dispute, the Courts below, wrongly dismissed the suit for permanent injunction. He further submitted that even other evidence, was led by the plaintiff, to prove his possession, over the property, in dispute, but the same was misread and misappreciated, as a result whereof, perverse findings, were recorded by the Courts below, leading to the dismissal of the suit. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT RSA No. 448 of 2009 5 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The plaintiff, claimed his possession, over the property, shown by letters ABCDEF, in the site plan P1. On the other hand, the defendants, produced and proved, on record, R1, the site plan. The disputed property, measuring 10 ft x 10 ft, is towards the northern-western side of the property, as shown, in the site plan P1. Kartara Ram, PW1, during the course of his cross-examination, stated that, the affidavit exhibit PW1/A, in the shape of his examination-in-chief, was not read over and explained to him, and he had no knowledge about the contents of the same. In this view of the matter, the Courts below, were right, in holding, that the evidence of Kartara Ram, was of no help, to the case of the plaintiff, to prove, that he was in possession of the property, in dispute. Roshan Lal, PW2, is the son of the plaintiff/appellant. He could not produce any document, with regard to the ownership of the disputed property, though, he claimed, that the same, was with him. Under these circumstances, the Courts below, were right, in coming to the conclusion, that an adverse inference, could be drawn, against the plaintiff/appellant, that he had withheld the best piece of evidence, in the shape of document of ownership, in his possession. Even the plaintiff, did not appear, in the Court, to depose that, he was in possession of the property, in dispute, and RSA No. 448 of 2009 6 if so, in which capacity. Even the dimensions of the property given by Roshan Lal, PW2 son of the plaintiff, were not in consonance with the dimensions mentioned in P1, the site plan, produced and proved. Defendants No. 1 to 4, in their written statement, stated that, the plaintiff, claimed his possession, over the land, measuring 10 ft x 10 ft, on the western-northern corner, but he was in possession of lesser area, than the area shown, in the site plan P1. Defendants No. 5 to 7, in their written statement, stated that, the plaintiff, had wrongly given the length of the property, in dispute, at points A and B. No doubt, defendants No. 5 to 7, stated that, they had no concern with the suit property. From the written statement of respondents No. 1 to 4, it was not proved, that the plaintiff, was in exclusive possession of the entire property, which is, in dispute. From the written statement of defendants No. 5 to 7, it was not proved, that the plaintiff, was admitted to be in possession of the property, in dispute, by them. If on any portion of the disputed property, the plaintiff, was in possession, it was, for him, to pin-point that area. Instead of pin-pointing that area, the plaintiff, claimed himself to be in possession of the entire disputed property, which fact, was not proved, from the evidence, on record. Under these circumstances, the Courts below, in my opinion, were right, in holding that the plaintiff, having failed to prove his exclusive possession, over the entire disputed property, was not entitled to the injunction prayed for. 12. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference, by this Court. The judgements and decrees of the Courts below, are, thus, liable to RSA No. 448 of 2009 7 be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed, with costs. 16.09.2009 (SHAM SUNDER) Amodh JUDGE