RSA No. 2451 of 2010. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2451 of 2010. Date of decision 24.08.2010. Rajbir ...... Appellant. versus Municipal Committee, Hathin ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. R.S.Sihota, Senior Advocate with Mr. B.R.Rana, Advocate , for the appellant. K.C.PURI, J. This is an appeal directed by plaintiff-appellant against the judgment and decree dated 8.4.2010 passed by Shri R.K.Yadav, Additional District Judge, Palwal vide which the appeal preferred by the plaintiff- appellant against the judgment and decree dated 13.9.2008 passed by Shri A.K.Sharma, Additional Civil Judge (Senior Division), Hathin, was dismissed. Rajbir plaintiff filed suit for permanent injunction restraining the defendant from taking possession of the suit property. It is alleged that suit property is owned by the plaintiff is well known Rajanwala Kuan exists RSA No. 2451 of 2010. 2 in front of his cattle shed towards Western corner with its ladders for going on the floor of the well. The plaintiff has been residing there since from the time of his forefathers. Rajanwala Kuan was dug and constructed by his fore-fathers for public as well as for private use in continuation of the tradition in the Village. A pucca cemented rasta sar-e-aam was got constructed by the Municipal Committee and a nail is running parallel to it discharge of its water as shown in green colour in the site plan. Without having any right, title and interest the defendant is bent upon to interfere and disturb his ownership and possession by the methods other than due process of law. The defendant has contested the suit on the grounds of maintainability, cause of action, locus standi and concealment of material facts. On merits, defendant denied the ownership and possession of the plaintiff over the suit property. It is pleaded that the plaintiff is owner of portion EGHIJ and remaining portion belongs to the defendant. It is averred that in portion ABCDEF is a KAYAMI having been owned and possessed by the answering defendant. The present plaintiff with his brother Shabir had filed a Civil Suit bearing No.700 of 1994 against Gram Panchyat which was dismissed vide judgment and decree dated 7.8.2001 passed by Civil Judge (Junior Division), Palwal. The appeal preferred by his brother was dismissed by the learned Additional District Judge, Faridabad on 4.12.2001. The second appeal preferred by the plaintiff was also dismissed by this Court in limine. Following issues were framed :- RSA No. 2451 of 2010. 3 1. Whether the plaintiff is exclusive owner in possession of property mentioned in para no.1 of plaint ?OPP. 2. Whether the defendant is liable to be restrained from interfering in the peaceful possession of the plaintiff over property in question, on the grounds mentioned in plaint? OPP. 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has no cause of action nor locus standi to file the present suit ?OPD. 5. Whether the plaintiff has concealed true and material facts from the court and if so, its effect ? OPD 6. Relief. Plaintiff himself appeared as PW-1. He also examined PW-2 Heti, PW-3 Nawal Khan, PW-4 Advocate Tahir Hussain and draftsman Khushal Sharma as PW-5. In rebuttal, defendant examined DW-1 Clerk Vinod Kumar from Municipal Committee, Hathin and closed the evidence. The learned trial Court has taken up issue Nos.1 and 2 and both these issues were decided against the plaintiff and in favour of the defendant. Issue Nos.3 to 5 were decided in favour of the defendant and against the plaintiff and in view of finding on issues, suit of the plaintiff was dismissed. Feeling dissatisfied with the above said judgment, plaintiff filed First Appeal. The same was dismissed vide judgment and decree dated 8.4.2010 passed by Shri R.K.Yadav, Additional District Judge, Palwal Still feeling dissatisfied, with the judgment and decree dated 13.9.2008 passed by Shri A.K.Sharma, Additional Civil Judge (Senior RSA No. 2451 of 2010. 4 Division), Hathin and judgment and decree dated 8.4.2010 passed by Shri R.K.Yadav, Additional District Judge, Palwal, the present regular second appeal has been filed. The learned counsel for the appellant has submitted that the judgment and decrees of both the Courts below are the result of misinterpreting and misreading the evidence on the file. All the witnesses PW-1 to PW-5 have categorically stated that plaintiff is owner in possession of the suit property. The oral evidence as well as documentary produced by the defendant has not proved the possession of the defendant. It is submitted that both the Courts below have misread and misinterpreted on the file and in view of authority P.Chandrasekharan & others vs. S.Kanakarajan & Others JT 2007 (6)SC 347, the appeal is liable to be accepted. The plaintiff earlier filed Civil Suit No.700 of 1994 against Gram Panchyat regarding suit property, which was dismissed vide judgment and decree dated 7.8.2001 Ex.DW1/A. The appeal was also dismissed vide judgment and decree 4.12.2001. The second appeal preferred by the plaintiff and his brother was also dismissed. There is concurrent finding of fact that plaintiff has failed to prove the ownership and possession of the suit property. That being a finding of fact cannot be assailed in the second appeal. No pointed attention of mine has been drawn from which it can be concluded that both the Courts below have drawn wrong conclusion from the evidence on the file. Both the Courts below besides oral evidence has considered the previous judgment regarding the suit property in which plaintiff and his brother have RSA No. 2451 of 2010. 5 failed even upto this Court. The authority cited by the learned counsel for the appellant in P.Chandrasekharan & others' case (supra) is not helpful to the appellant as there is no misreading and misinterpretrating of the evidence on the file. So, I have no hesitation in holding that no substantial question of law has arisen in the present case. In view of the above discussion, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 24th, 2010 sv RSA No. 2451 of 2010. 6 II/24.8.2010 This is an appeal directed by plaintiff/appellant against the judgment dated 28.1.1999 passed by the Shri Additional District Judge, vide which the appeal preferred by the plaintiff against the judgment dated 3.1.2007 passed by Shri K.C.Garg, PCS, Additional Civil Judge (Senior Division), Dhuri was dismissed. S.S.plaintiff filed a suit for declaration declaring the plaintiff to be owner in possession of the suit land measuring 8 bighas fully described in the heading of the plaint. It is pleaded that defendant has no concern with the suit property. The registered sale deed No.262 dated 25.4.1988 alleged to be executed by plaintiff in favour of the plaintiff and mutation on the basis of the said sale deed is void, ineffective and in violative. The brief facts of the plaintiff's case has set forth in the plaint is that plaintiff is recorded as owner to the extent of 1/4th share in land measuring 11 bighas 11 biswas in the jamabandi for the year 1991-92 which is ............. The defendant is also owner to the extent of 1`/4th share in the suit land as per revenue record. It is submitted that DSF and after he ................................... sale deed No.262 dated 25.4.1988 regarding the suit property in his favour. When he was serving in Punjab Home Guard by playing fraud and by misrepresenting despite RSA No. 2451 of 2010. 7 the plaintiff that plaintiff has never executed the sale in favour of the defendant. He did not purcharge ................. for execution of the sale deed without any consideration mentioned in the sale deed was received by him. Plaintiff has challenged the sale deed being ..................... Plaintiff has also challenged mutation No.454 on the basis of the said saledeed. Upon notice defendant filed written statement taking preliminary objection inter alia that the suit is not within limitation; that the suit has not been properly valued for the purposes of court fee and jurisdiction; that the suit ............... and consequently relief of possession is not maintainable. On merits, it was denied that the plaintiff is cosharer to the extent of 1/4th share in land measuring 41 bighas 11 marlas. It is pleaded that plaintiff has sold land measuring 8 bighas 10 biswas by sale deed dated 25.4.1988 for a consideration of Rs.20,000/-. The defendant is owner in possession of the suit property and the plaintiff has no concern with the property. It was admitted that plaintiff was earlier in BSF and presently working in the Rice Seller. Defendant has denied the sale deed is result of fraud. Replication was filed reiterating the stand taken up in the plaint and denying the contents of written statement. The plaintiff himself appeared as PW-1 and examined PW- 2 Pritam Singh , PW-3 B.B.R. And PW-4 Gurdial Singh and closed the evidence. In rebuttal, defendant examined Satnbam Singh DW-1, RSA No. 2451 of 2010. 8 Mohinder Pal DW-2, DW-3 Khushyal, DW-4 Navdeep Gupta Document Expert, DW-5 ...... and he himself appearded as DW-6 and examined S.S.DW-7 and closed the evidence. The learned triual Court decided issue Nos.1 to 4 together and returned the finding on all these issues against the plaintiff. Issue No.5 regarding limitation was also decided against the plaintiff. The plaintiff affixed the court fee and as such issue No.6 was decided accordingly. Issue No.7 was decided in favour of the defendant and against the plaintiff. In view of the finding on all the issues, the suit of the plaintiff was dismissed. Feeling dis-satisfied with the above said judgment, the plaintiff preferred the First Appeal which was heard and decided by Shri Rajinder Aggarwal, learned District Judge, Sangrur and vide judgment and decree dated 28.1.2009 passed by Shri Rajinder Aggarwal, Additional District Judge and judgment dated 3.1.2007 pased by Shri K.C.Garg, Additional Civil Judge (Senior Division), Sangrur, the plaintiff-appellant has preferred the present regular second appeal. The appellant in paragraph No.9 of the grounds of appeal has mentioned that following substantial questions of law has arisen in this appeal :- Learned counsel for the appellant has submitted that both the Courts below have misinterpreted and misread the evidence on the file. The sale deed in question is the result of fraud committed by the RSA No. 2451 of 2010. 9 defendant, who happened to be the brother of plaintiff-appellant. The report of Shri............ V.B.Bhatnagar clearly shows that signatures of the appellant does not figure on the sale deed in question. There are two witnesses of the sale deed, one is reported to have died and another have not identified the plaintiff. So, the sale deed in question is not proved on the file. The report of the Expert produced by Navdeep Guipta by the defendant is wrong on the face of it. No consideration has passed through the sale deed in question. The other ground for dismissing the suit of the plaintiff is limitation. It is submitted that although the sale deed was alleged to be executed in the year 1988 but since the same has not been executed by the plaintiff and as such the same could be challenged by him from the date of his knowledge. The suit is, therefore, within limitation. Both the Courts below have committed error in this regard while deciding the issue of limitation against the plaintiff. It is further submitted that judgments and decrees of both the Courts below are illegal and deserves to be set aside in as much as the documentary evidence has not been given due weightage and oral evidence has been discarded on flimsy grounds. It is further submitted that judgments and decrees of both the Courts below is the result of misreading of the evidence. So, the prayer has been made for acceptance of the appeal. Learned counsel for the respondent has supported the judgments and decrees passed by both the Courts below. I have given my thoughtful consideration to the rival RSA No. 2451 of 2010. 10 submissions made by both the sides and have gone through the records of the case. The controversy in the present lis is that regarding the execution of the sale deed No.262 dated 25.4.1988 executed by the plaintiff in favour of defendant for a consideration of Rs.20,000/-. Both the Courts below have duly appreciated and re-appreciated the evidence returned a finding that the sale deed in question was duly executed by the plaintiff in favour of defendant and on the basis of the sale deed, the defendants have become owner and in possession of the suit property. That being a finding of fact cannot be interferred in the second appeal. The report of V.B.Bhatnagar has duly been considered and the same has been rightly rejected by both the Courts below. The defendant has also produced the expert which is duly qualified whereas the Expert produced by the plaintiff is simply a Graduate and does not possess any technical qualification regarding handwriting and finger prints. Moreover, the science of handwriting is not perfect science. The sale deed was executed in the year 1988 and the same has been challenged in the year 2002 i.e. after a period of 14 years. It cannot be said that plaintiff was not in the knowledge of the sale deed. The plaintiff was residing in the same village where the land is situated. Mutation of the sale deed has also been attested in favour of the defendants. There is nothing on the file that judgment of both the Courts below is the result of misreading and misinterpreting the evidence on the file. Due weightage has been given by both the Courts below to the documentary as well as oral evidence. RSA No. 2451 of 2010. 11 So, in view of the above discussion, substantial questions of law raised by the appellant stand answered against the plaintiff/appellant. Consequently, the appeal is without any merit and the same stands dismissed. However, keeping in view the fact that both the parties are real brothers, the parties are left to bear their own costs so far as regular second appeal is concerned. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 24th, 2010 sv