R. S. A. No. 2028 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2028 of 2009 Date of Decision : May 17, 2010 Harchand Singh and others .... Appellants Vs. Baljinder Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rakesh Chopra, Advocate for the appellants. Mr. R. D. Bawa, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendants, who were successful in the trial court, but have been unsuccessful in the lower appellate court. Respondent Baljinder Singh filed suit for permanent injunction and mandatory injunction alleging that the defendants intended to encroach upon the disputed passage, through which water of the house of the plaintiff flows towards pond. The defendants denied the existence of any such passage and pleaded that their house exists at the said site. R. S. A. No. 2028 of 2009 2 Learned Civil Judge (Junior Division), Fatehgarh Sahib, vide judgment and decree dated 08.02.2008, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff, has been allowed by learned Additional District Judge, Fatehgarh Sahib, vide judgment and decree dated 24.09.2008 and suit filed by the plaintiff stands decreed. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that plaintiff-respondent has not led any documentary evidence to prove the existence of passage. However, learned counsel for plaintiff-respondent contended that disputed passage, being inside abadi area, no documentary evidence could be led. Per contra, learned counsel for the appellants contended that there is aks shajra at page 49 of the trial court record and same has not been tendered as evidence by the plaintiff-respondent. However, learned counsel for plaintiff-respondent contended that there is only one khasra number of entire abadi and therefore, passages are not depicted in aks shajra. I have carefully considered the rival contentions. It is not disputed that abadi area of village consists of a single khasra number. Production of aks shajra in evidence could not have served any purpose, when the passages have not been depicted in abadi area. On the other hand, plaintiff's evidence stands unrebutted. The defendants have R. S. A. No. 2028 of 2009 3 not led any evidence whatsoever. None of the defendants dared to enter the witness box. Therefore, adverse presumption arises against the defendants. It is correct that plaintiff has to stand on his own legs. However, plaintiff has led sufficient oral evidence, which in the absence of rebuttal, is sufficient to prove his case. Defendants should have led some evidence to rebut the plaintiff's evidence, but the defendants have failed to do so. If defendants had led some evidence, the case could be decided on preponderance of evidence. Non-appearance of defendants in the witness- box without any explanation gives rise to strong adverse inference against the defendants. The lower appellate court has recorded finding of fact that the disputed passage is in existence. Lower appellate court is final court of fact. The aforesaid finding recorded by the lower appellate court cannot be said to be perverse or illegal so as to warrant interference 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 found to be without any merit and is accordingly dismissed. May 17, 2010 ( L. N. MITTAL ) monika JUDGE