IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4286 of 2009 Date of Decision : November 26, 2009 Jai Narain ....Appellant Versus Shree Krishan and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.K. Yadav, Advocate T.P.S. MANN, J. Suit for declaration with consequential relief of permanent injunction was filed by Shree Krishan-plaintiff, wherein it was averred that the suit land in question was Gair Mumkin Gitwar property comprising Khewat No.337/325 Khatoni No.364 Khasra No.211 (0-6) in the revenue estate of village Bikaner, Tehsil and District Rewari and he was owner in possession of the same. The suit land was purchased by him vide sale deed dated 2.2.1994 for a sale consideration of Rs.7,000/- from Ami Lal. The defendants were strong and powerful persons, who were bent upon for taking forcible possession of the suit land by digging foundation and raising wall. The plaintiff claimed that in case Jai Narain-defendant succeeded in taking forcible possession of the suit land in collusion with the remaining defendants, it would cause R.S.A. No.4286 of 2009 -2- irreparable loss and injury to him. He had made numerous requests to the defendants to desist from interfering in his peaceful possession over the suit land and not to raise any construction but to no effect. Hence, the suit. Defendants No.2 to 4, namely, Maman, Om Parkash and Sube Singh filed their written statement in which besides taking preliminary objections they denied the claim of the plaintiff and stated that the suit was barred under Section 11 C.P.C. as Civil Suit No.256 of 1991 titled “Maman Singh and others v. Ami Lal” stood decreed in their favour. Under the said decree, Ami Lal was restrained from interfering in their peaceful possession. It was also held that they alongwith Laxmi Devi were owner in possession of the suit land. They, accordingly, prayed for dismissal of the suit. Jai Narain-defendant No.1 adopted the written statement and reply filed on behalf of defendants No. 2 to 4. In his replication, the plaintiff pleaded that he was not a party to Suit No.256 of 1991. The said suit was for permanent injunction and title of parties was not decided. His predecessor-in-interest, namely, Ami Lal's father had purchased the suit land in public auction on 23.6.1967 and the sale was confirmed on 26.11.1991 when certificate of sale was issued in favour of Ami Lal, who sold the suit land to the plaintiff on 2.2.1994. The defendants had filed a false and fictitious suit against Ami Lal and managed to obtain a decree which was factually R.S.A. No.4286 of 2009 -3- wrong. The plaintiff claimed himself to be a bonafide purchaser of the suit land. After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court held that it was the plaintiff who was lawful owner of the suit land, having purchased the same from Ami Lal whose father had purchased it in public auction in the year 1967. Though Jai Narain-defendant claimed to be in possession of the suit land but he did not derive his title from lawful vendors. However, during the course of the suit proceedings, he had taken possession of the suit property and raised a room, besides taking electricity connection etc. Accordingly, vide judgment and decree dated 22.5.2008, Civil Judge (Junior Division), Rewari decreed the suit to the effect that the plaintiff was owner of the suit property and he was also entitled to a decree of mandatory injunction requiring defendant-Jai Narain to get the construction, if any, demolished at his own costs and expenses and to hand over the possession of the suit property to the plaintiff. Aggrieved of the decreeing of the suit, Jai Narain-defendant filed an appeal but the same was dismissed by Additional District Judge, Rewari on 21.8.2009. Under these circumstances, said defendant filed the present second appeal under Section 100 C.P.C. Though the trial Court framed issue No.4 as to whether the R.S.A. No.4286 of 2009 -4- matter in dispute was barred by principle of res judicata under Section 11 C.P.C. yet no evidence was led by the defendants to prove the said issue although onus laid upon them. Accordingly, the said issue was decided against the defendants and in favour of the plaintiff. Though, Maman and his two brothers, had obtained a decree in their favour in Civil Suit No.256 of 1991 filed against Ami Lal, predecessor-in-interest of the plaintiff yet neither the plaintiff was impleaded as a party therein nor any relief granted against him. The decision regarding ownership and possession in favour of Maman and others was, thus, of no consequence against the plaintiff. On the other hand, Ami Lal had become owner of the suit property, as his father Bodan purchased the same in public auction on 23.6.1967, followed by issuance of certificate of sale in favour of Ami Lal. Said Ami Lal, later on, sold the suit land to the plaintiff on 2.2.1994 for a sale consideration of Rs.7,000/- The public auction was held in respect of decree obtained by the Bikaner Co-operative Agricultural Services Society, Bikaner against Ghisa Ram. Once the property belonging to Ghisa Ram had been sold in public auction, he was left with no interest in the suit property which defendants No.2 to 5, claimed to have purchased from Ghisa Ram and the said defendants thereafter selling the suit property in favour of Jai Narain-defendant No.1. The evidence led by the parties has been correctly R.S.A. No.4286 of 2009 -5- appreciated by the learned Courts below. The concurrent findings of facts are based upon the evidence and, therefore, they do not suffer from the vice of illegality or infirmity. As such these findings cannot be disturbed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The substantial questions of law as formulated by the defendant-appellant and stated in para 6 of the grounds of appeal, do not arise from determination. Resultantly, the appeal is dismissed in limine. ( T.P.S. MANN ) November 26, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO