R.S.A. No.3466 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3466 of 2011(O&M) Date of Decision:12.09.2011 Phool Kanwar and another ......Appellants Versus Raj Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Ms.Sangita Dhanda, Advocate, for the appellants. **** M EHINDER S INGH S ULLAR , J.(oral) Having kept the law laid down by the Hon'ble Apex Court in case Kashmir Singh Versus Harnam Singh and another 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 epitome of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record is that, Phool Kanwar son of Manphool Singh and Ram Mehar son of Ran Singh-appellant- plaintiffs(hereinafter to be referred as “the plaintiffs”) filed the suit for a decree of permanent injunction, restraining Raj Singh and others-respondent-defendants(for brevity “the defendants”), from interfering in their peaceful possession over the suit property, inter alia, pleading that they are owner and in possession of the disputed plot, which was allotted to their ancestors. After their death, the plaintiffs inherited and became owner and in possession of the plot in question. The defendants have got no right, title or interest in it, but they forcibly intend to R.S.A. No.3466 of 2011(O&M) 2 dispossess them from the plot in dispute, without any legal right. They asked the defendants not to do so, but in vain, which necessitated them to file the present suit. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of permanent injunction against the defendants, in the manner indicated hereinabove. 3. The defendants refuted the claim of the plaintiffs and filed the written statement, taking certain preliminary objections of, maintainability of the suit, cause of action, estoppel and locus standi of the plaintiffs. The case set-up by the defendants, in brief, insofar as relevant was that, the plaintiffs are neither owner, nor in possession, rather they(defendants) are owner and in possession of the plot in question and had constructed a boundary wall around it. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 5. The parties to the litigation, in order to substantiate their respective pleas, brought on record oral as well as the documentary evidence. 6. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, dismissed the suit of the plaintiffs, by way of impugned judgment and decree dated 26.08.2009. 7. Aggrieved by the decision of the trial Court, the plaintiffs filed the appeal, which was dismissed as well by the first Appellate Court, by means of impugned judgment and decree dated 25.05.2011. 8. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. R.S.A. No.3466 of 2011(O&M) 3 9. After hearing the learned counsel for the appellant-plaintiffs, going through the record with her valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal in this context. 10. Ex facie, the argument of the learned counsel that since, the plaintiffs are owner and in possession of the plot in dispute, so, the Courts below committed a mistake in dismissing their suit, sans merit. 11. As is evident from the record that, the plaintiffs filed the suit for a decree of permanent injunction, claiming themselves to be owner and in possession of the plot in question, which was stoutly denied by the defendants. In that eventuality, a heavy burden of proof was upon the plaintiffs to prove their possession over the plot in question. They miserably failed and did not produce any cogent and convincing evidence in this relevant connection. 12. Having completed all the codal formalities and taking into consideration the entire evidence brought on record in the right perspective, the trial Court recorded a finding of fact that the plaintiffs are not proved to be owner & in possession and the defendants are owner and in possession of the plot in question. Not only that, the decision of the trial Court was affirmed by the first Appellate Court, by virtue of impugned judgment and decree dated 25.05.2011, the operative part of which is as under:- “54. Local Commissioner Sh.Sikander Malik, Advocate, appearing as DW3 has proved his report(Ex.DW3/E) showing that he had visited the spot on 22.8.1998 in terms of order dated 19.8.1998 of the court proving notice Ex.DW3/A and Ex.DW3/B sent to the parties of his proposed visit. He had also proved spot memo Ex.DW3/C regarding presence of the parties and others at the spot. Site plan of the spot is Ex.DW3/D. Despite very lengthy cross-examination effected on this witness, his credit could not be impeached. Report(Ex.DW3/E) of the Local Commissioner sustains and supports the case of the defendants by negating that of the plaintiffs. 55. Richhpal making his statement on affidavit(Ex.DW5/A) has also faced cross-examination while appearing as DW5 but his credit could not be shattered even a little. Rather, more the cross-examination became R.S.A. No.3466 of 2011(O&M) 4 grilling, brighter has emerged the case of the defendants while completely negating the case of the plaintiffs. 56. When the plaintiffs have neither been able to sustain their plea of title nor of possession, the defendants have been able to dislodge the plaintiffs of their proclaimed status of owners in possession. Report (Ex.DW3/E) of Local Commissioner Sh.Sikander Malik, Advocate, proved by him while entering the witness box as DW3 clears the mist, supporting the claim of the defendants about raising of boundary wall by them around the plot and of their continued possession. Even PW2 Shobha Ram and PW3 Ram Mehar have conceded possession of the defendants qua the plot in dispute. 57. Plaintiffs were to stand on their own legs. They cannot be allowed to take advantage of the weaknesses of the defendants. There is complete failure of case of the plaintiffs. Plaintiffs have not been able to sustain their plea of ownership as also of possession of the suit property. Consequently, learned lower Court had rightly decided issue No.1 against the plaintiffs. There being no error either on facts or in law, the said findings are affirmed.” 13. Learned counsel for the appellant-plaintiffs did not point out any material, much less cogent, to contend that how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant context. 14. Above all, 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, the Courts below 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-plaintiffs, so as to take a contrary view, than that of the well-reasoned decision arrived at by the Courts below, in this regard. 15. No other meaningful argument has been raised by the learned R.S.A. No.3466 of 2011(O&M) 5 counsel for the appellants, to assail the findings of the Courts below. All other arguments, relatable to the appreciation of evidence, now sought to be urged on their behalf, have already been duly considered and dealt with by the Courts below. 16. Sequelly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since, no question of law, much less substantial is involved, so, no interference is warranted in the impugned judgments and decrees of the Courts below, in view of the law laid down by the Hon'ble Supreme Court in Kashmir Singh's case(supra) in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 18. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. September 12, 2011 (MEHINDER SINGH SULLAR) seema JUDGE