Regular Second Appeal No.4415 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4415 of 2009 Date of Decision:-6.9.2011 Dilbag Singh ...Appellant Versus Nirmal Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Avtar Singh Khaira, Advocate for the appellant. Mr.Arvind Singh, Advocate for respondent No.1. Respondent Nos.2 & 3 already exparte. Nemo for respondent No.4. M ehinder S ingh S ullar , J . (Oral) Having kept the law laid down by Hon'ble Apex Court in case Kashmir Singh vs. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 into focus, now the short and significant question, though important that arises for determination is, as to whether any substantial question of law is involved in the instant regular second appeal, so as to invoke the jurisdiction vested in this Court under Section 100 C.P.C or not ? 2. The crux of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the present regular second appeal and emanating from the record, is that Dilbag Singh son of Chhota Singh appellant-plaintiff (for brevity “the plaintiff”) filed the suit for a decree of mandatory injunction, directing Nirmal Singh, Amrik Singh sons of Niranjan Singh, Paramjit Kaur daughter of Kehar Singh and Gram Panchayat of village Kumbra respondent-defendants (for short “the defendants”) to remove the obstruction at points E and F depicted in the site plan and from making any Regular Second Appeal No.4415 of 2009 -2- encroachment over the disputed street. 3. The contesting defendants refuted the claim of plaintiff, filed the written statement, stoutly denied the existence of public street in question, all allegations contained in the plaint and prayed for dismissal of the suit. Controverting the allegations contained in the written statements and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 4. The trial Court held that the plaintiff has miserably failed to prove the encroachment in question and dismissed his suit, by virtue of impugned judgment and decree dated 5.6.2007. 5. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 13.6.2009. 6. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the instant regular second appeal. 7. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 8. Ex facie, the argument of learned counsel that since it is clear from the letter (Ex.PW2/A) written by BDPO to DDPO that the defendants have encroached upon the street, so, the Courts below committed a legal mistake in dismissing the suit of the plaintiff, lacks merit. 9. As is evident from the record that plaintiff has claimed that the defendants have encroached upon the disputed portion of the street, which was stoutly denied by them. In that eventuality, a heavy burden of proof was on the plaintiff to prove that the disputed portion is a part of public street and that the Regular Second Appeal No.4415 of 2009 -3- defendants have made encroachment on it. He has utterly failed in this relevant connection. The alleged letter (Ex.PW2/A) written by BDPO to DDPO is not sufficient in this relevant behalf. The plaintiff did not produce any other cogent evidence on record to prove that the property in dispute is a part of the public street. 10. Having completed all the codal formalities and after taking into consideration the entire evidence on record, the trial Court has rightly dismissed the suit of the plaintiff. Not only that, the decision of the trial Court was upheld and the letter (Ex.PW2/A) was correctly ignored by the Ist Appellate Court, by means of impugned judgment dated 13.6.2009, which, in substance, is as under:- “Much stress has been laid by the learned counsel on letter Ex.PW2/A allegedly written by the BDPO to the DDPO which is dated 20.6.1995. In this letter a reference has been given to the alleged encroachment made by Nirmal Singh respondent in the Shamlat land. The present suit has been filed on 12.3.1997 i.e. after a period of more than 1½ year of the above said letter in which reference of the alleged encroachment by the respondent has been given which shows that the alleged encroachment by the resident was made much prior to the letter Ex.PW2/A. But very strangely, the appellant has pleaded in his plaint that the respondent Nirmal Singh has made encroachment by raising the construction of Veranda about two months prior to the filing of the suit i.e. in December/January, 1997. Keeping in view the letter Ex.PW2/A relied upon by the appellant himself, it is evident that he has miserably failed to prove the alleged encroachment which was allegedly made by respondent Nirmal Singh about two months prior to the filing of the suit. Even otherwise no benefit of letter Ex.PW2/A can be given to the appellant even otherwise, because, it has not been disclosed as and under what circumstances, this letter was written i.e. what is the basis of this letter and moreover, if this letter was written why no action was taken against the alleged encroachment made by respondent Nirmal Singh in the street. It appears that this letter was written in order to help the opponents of the respondents. Not only that earlier Nirmal Singh has filed a suit against Tarlohan Singh, who has appeared as witness in support of the appellant and others pertaining to this very alleged encroachment in the street. But Regular Second Appeal No.4415 of 2009 -4- Tarlochan Singh and others did not get that case decided on merits. Rather they got that case decided on the basis of compromise. Now it does not lie in the mouth of Tarlochan Singh (PW) to again speak of about the alleged encroachment made by Nirmal Singh respondent. That case also shows that the alleged encroachment of Varandah has been made by Nirmal Singh respondent at point EF shown in the site plan Ex.PW4/A for the last many years. But no effort was made by the appellant to approach the court or any competent authority for its removal immediately after the said alleged encroachment.” 11. The learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to show as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant direction. 12. Meaning thereby, the Courts below have taken into consideration and appreciated the entire evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, they have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 13. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant connection, have already been duly considered and dealt with by the Courts below. 14. Sequelly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is Regular Second Appeal No.4415 of 2009 -5- beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Supreme Court in Kashmir Singh's case (supra) in the obtaining circumstances of the present case. 15. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 16. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 6.9.2011 Judge AS Whether to be referred to reporter?Yes/No