RSA No.406 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.406 of 1985 Date of decision:19.5.2011 Mohinder Singh and others ...Plaintiffs/Appellants Versus Rajbir Sinth and others ...Defendants/Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Sarjit Singh, Sr. Advocate with Ms.Mamta Rani, Advocate, for the plaintiffs/appellants. Mr.Rajbir Wasu, Advocate, for the defendants/respondents. -.- JITENDRA CHUAHAN, J. The present appeal is directed against the judgment and decree dated 5.1.1985, dismissing the first appeal passed by the learned Additional District Judge, Kapurthala, whereby the judgment and decree dated 27.8.1983 passed by the learned Sub-Judge Ist Class, Kapurthala, dismissing the suit of the plaintiffs, was affirmed. Ramanjit Singh, the original owner of the property bearing Khasra No.6117/5835/2403, sold 1K-10M of land out of this khasra number to one Balbir Chand vide sale-deed mark-A dated 19.10.1959. Thereafter, Balbir Chand vide two sale-deeds, Ex.P3 and P4, sold 15 marlas of land out of 1K-10M to Mohinder Singh and others herein `the plaintiffs and remaining land i.e. 15 marlas was sold to Jai Gopal. Jai Gopal sold his share to Sucha Singh and Suchan Singh, who further sold his share to the plaintiffs . The RSA No.406 of 1985 2 plaintiffs became the owners of 1K-10M of land. The said Ramanjit Singh further sold 1K-4M of land out of said khasra number to Jiwan Sood, who sold 13 marlas of land, out of 1K-4M, to Harbhajan Singh. The remaining land i.e. 11 marlas was sold by Jiwan Sood to Chaman Lal and Piara Lal on 28.12.1968. Thereafter, the said Harbhajan singh, Chaman Lal and Piara Lal sold their part (i.e. 1K-4M) to Rajbir Singh and others herein `the defendants vide four sale-deeds, Ex.D4 to D8. As such, the defendants became the owners of land measuring 1K-4M. The plaintiffs filed the suit for permanent injunction, restraining the defendants from interferring in the peaceful and legal possession of the plaintiffs in the plot bearing khasra No.6490/6117/5837/2403 measuring 15 marlas as entered in the Jamabandi for the year 1975-76. It is alleged that the plaintiff purchased the property in dispute for a sum of Rs.30,000/- vide sale-deed dated 19.5.1981. The plaintiffs were put in possession of suit property at the time of sale by the vendors. The plaintiff averred in the plaint that the property of the defendants adjoins towards the South of the plot in dispute and they are illegally trying to trespass in the plot, owned and possessed by the plaintiffs. The plaintiffs also averred that the defendants started encroaching upon the plot in dispute after issuing the stay order in October 1981. The defendants contested the suit on the ground that the predecessor-in-interest of the plaintiffs Sucha Singh had filed a Civil Suit No.257 of 1969, for possession of 1313 Sq. feet out of the present suit property, against the predecessor-in-interest of the defendants Chaman Lal and Bhajan Singh, which was dismissed with costs on 24.1.1972 and therefore, the present suit was not maintainable. The defendants also took RSA No.406 of 1985 3 the stand that the plaintiffs did not come with clean hands and concealed the material facts. After framing of issues and allowing the parties to lead evidence, the trial Court vide judgment and decree dated 27.8.1983 dismissed the suit of the plaintiffs. Feeling aggrieved against the judgment and decree of the learned trial Court, the plaintiffs preferred an appeal, which was dismissed by the Additional District Judge, Kapurthala, vide judgment and decree dated 5.1.1985. Hence, the present appeal, which was admitted by this Court on 19.3.1985. Learned counsel for the plaintiffs has submitted that as per sale- deed, Exhibits P3, Ex.P4 and Ex.P1, it is made out that the plaintiffs are owners of 1K-10M of land. He has further submitted that during the pendency of earlier suit and in spite of the stay order, the defendants encroached upon 7 marlas of land of the plaintiffs. Learned counsel has also submitted that from the statement of Deena Nath, Kanungo, DW2, it is established that the plaintiffs have got 1K-4M of land and as such the plaintiff have less area. It has also been submitted that both the courts below have wrongly held that mutation No.2285 sanctioned on the basis of sale-deed is to prevail over the recitals given in the sale-deed. The appellants are owners of the land as given in the sale-deed and not as mentioned in the mutation. On the other hand, learned counsel for the defendants/respondents submitted that from the statement of plaintiff RSA No.406 of 1985 4 Mohinder Singh, it is established that there is a passage towards the northern side of the plot of the defendants, which is 21 feet wide on the front side and 8 feet wide on the back side. It has also been submitted that earlier the predecessor-in-interest of the plaintiffs Sucha Singh filed a suit for possession of 1313 Sq. feet out of the present suit property, against the predecessor-in-interest of the defendants Chaman Lal and Harbhajan Singh, which was dismissed on 24.1.1972. The plaintiffs did not lead any evidence, which shows that the defendants encroached upon 7 marlas of the land. It has also been submitted that the area of the plot of the plaintiffs has been made good by revenue authorities. Learned counsel has also submitted that in the instant appeal no substantial question of law arises. He also cites P.H.Dayanand Vs. S.Venugopal Naidu and others, 2009 (1) RCR (Civil), 304 and argued that the plaintiff has failed to prove his title, so he is not entitled to a decree for possession. I have heard the learned counsel for the parties and perused the record with their able assistance. The main question to be determined by this Court is “whether the defendants had encroached upon the area of the plaintiffs/appellants or not”? Admittedly, the plaintiffs/appellants are owners of land measuring 1K-10M, while the defendants/respondents are owners of land measuring 1K-4M. The case of the appellants is that the defendants encroached upon 7 marlas of their land during the pendency of the suit. To prove their case, the plaintiffs relied upon the statement of Deena Nath, Kanungo, DW2, who stated that according to the measurement carried out by him at RSA No.406 of 1985 5 the spot, the plaintiffs have got 1K-4M of land instead of 1K-10M. This witness further stated that according to sale-deed, the plaintiffs purchased the land 62 ½ feet wide and 89 feet in length. This witness also stated that according to Mutation No.2256 as per entries in the latest jamabandi, the dimensions of Khasra No.6490/6617/5835/2403 are 4 karms on the eastern side and on the western side, while 35 karmas on the north and south side. Similarly in Khasra No.6489/6617/5835/2403, the dimensions are 4 karms on the east and west and 33 karms on the north and south sides. Thus, the lessor area of the plot of the plaintiffs has been made good by the revenue authorities by increasing the area of the western side as well as further increasing the length of the plot of the plaintiffs 30 karms on the north and south sides. In the circumstance, I agree with the findings of the learned trial Court that the plaintiffs instead of taking the land on the western side of their plot are claiming land towards the northern side of their plot. The plaintiffs took the stand that the defendants had encroached about 7 marlas of land. It has also come on record that earlier the predecessor-in-interest of the plaintiffs, Sucha Singh had filed a suit against the predecessor-in- interest of defendants Chaman Lal and Bhajan Singh for encroachment of the land. This suit was decided in favour of the defendants and factum of encroachment by the defendants could not be established. There is nothing on record which suggests that the defendants/respondents encroached upon the land of the plaintiffs. Therefore, the learned courts below have rightly held that the plaintiffs have failed to prove that the defendants had encroached upon the land of the plaintiffs/appellants. No substantial question of law arises for determination in the second appeal. RSA No.406 of 1985 6 In Madvan Nair V. Bhaskar Pillai, (2005) 10, SCC 533, Harjeet Singh v. Amrik Singh, (2005) 12 S.C.C. 270, H.P. Pyareja v. Dasappa, AIR 2006 SC 1144: (2006) 2 SCC 496, and Gurdev Kaur and others v. Kaki and others, J.T. 2006(5) S.C. 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 judgments of Courts below, is confined only to the hearing of substantial questions of law. No substantial question of law is involved in the present appeal. In view of the above, no interference is called for in the findings of the learned courts below. Accordingly, the instant appeal is dismissed. 19.5.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No RSA No.406 of 1985 7