RSA No.1028 of 2008 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.1028 of 2008 Date of decision: 23.3.2010 Brij Bhushan .....Appellant vs. Madan Lal ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr. Mukul Aggarwal, Advocate, for the appellant. Mr.Rakesh Gupta, Advocate, for the respondent. -- Rakesh Kumar Garg,J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby suit for permanent injunction restraining the defendant-respondent from taking forcible possession of the suit property was dismissed. As per the averments made in the suit, plaintiff is the sole proprietor and owner in possession of the suit property belonging to firm M/s Parkash Rice Mills. According to him, prior to this, there were eight partners in the said firm including the defendant. The aforesaid partnership was dissolved on 13.1.1988 when six partners retired from the firm. On 24.1.1988 the plaintiff joined in the partnership with the defendant and his father Narayan Dass. Thereafter, on 17.5.1990 the defendant and his father Narayan Dass retired from the partnership, and the plaintiff became the sole proprietor of the firm. It was further asserted that the defendant had no right, title or interest in the suit property but he was threatening to take RSA No.1028 of 2008 2 forcible possession of the suit property and came to the spot on 20.10.1992 with his workers with an intention to lock up the premises. However, his illegal act was foiled by the timely intervention and thus the present suit seeking a decree of injunction restraining the defendant from taking forcible possession of the suit property was filed. In the written statement filed by the defendant, it was pleaded that the present suit was not maintainable, as the plaintiff was not in possession of the suit property. It was further pleaded that defendant and his father were the owners of the suit property and the defendant was in exclusive possession of the same. It was admitted that the plaintiff had joined the partnership firm but it was on the condition that he would make payment of the loan of the firm within a month to the bank. It was further averred that the plaintiff had actually played a fraud. He had no money and he had given a false assurance and managed to obtain the documents dated 21.1.1988 and 17.5.1990. Both these documents were never acted upon. The defendant and his father remained owner in possession of the suit property and did not part with the possession which was to be delivered to the plaintiff only on the payment of the said loan within the time limit agreed upon. For some time only joint user of the machinery was permitted but possession of the suit property was kept by the defendant and his father. It was further pleaded that the ownership of immovable property cannot be transferred without a registered document, as the value of the property was in lacs, and moreover, this property was already pledged with the bank. It was further pleaded that a Local Commissioner had visited the suit property on the direction of the Court and found the defendant in possession of the suit property. It was further pleaded that on account of the RSA No.1028 of 2008 3 omission of the plaintiff to perform his part of the contract, the bank filed a suit for recovery against the defendant. Other averments made in the plaint were denied and dismissal of the suit was prayed for. By filing replication plaintiff further pleaded that he had made the full payment to the bank by depositing a sum of Rs.5,15,000/-. It was further alleged that the defendant in collusion with some other persons had committed a dacoity in the suit property on 23.10.1992 when he snatched the keys of suit property from Phool Singh, a servant of the plaintiff. The other averments made in the written statement were controverted and that of the plaint were reiterated. From the pleadings of the parties, the following issues were framed by the trial Court:- 1.Whether the defendant had taken the possession of the disputed premises (Industry and Rice Sheller) after filing of the suit and he had violated the order of the court as alleged in the application ? OPP 1-A.Whether the plaintiff is sole proprietor of the firm M/s Parkash Rice Mills as alleged ? OPP 2.Whether at the time offiling the suit the plaintiff was in possession of the disputed premises along with factory as alleged ? OPP 3.If issue No.2 is proved whether the plaintiff is entitled for possession of the premises along with factory ?OPP 4.Whether defendant has violated the order of the court as alleged ? OPP 5.Whether the suit of the plaintiff is not maintainable in the present form ?OPD 6.Whether the plaintiff has not followed the terms and condition of agreement as alleged if so to what effect ? OPD 7.Relief. RSA No.1028 of 2008 4 After conclusion of the evidence and hearing the learned counsel for the parties, the trial Court held that the plaintiff was not the sole proprietor of the firm M/S Parkash Rice Mills and was not in possession of the suit property at the time of filing of the present suit. It was further held that since the plaintiff was not in possession of the suit property at the time of filing of the suit, therefore, there was no occasion for the defendant to have violated the orders of the Court. It was further held that the suit of the plaintiff was not maintainable and he had violated the terms and conditions of the agreement. As a result of the aforesaid findings, the trial Court dismissed the suit. Not satisfied with the aforesaid judgment and decree of the trial Court, plaintiff filed an appeal which was also dismissed by the first Appellate Court vide impugned judgment and decree dated 25.9.2007. Not satisfied with the aforesaid judgment and decrees of the Courts below, the appellant has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:-` (i)Whether the learned courts below were justified in passing the impugned judgments and decrees without making a reference to the material admission/document (Ex.P-6), in spite of its being proved on the record and pointed out by the appellant ? (ii) Whether the entire approach of the learned courts below in non-suiting the plaintiff-appellant on the ground of maintainability can be sustained in the eyes of law especially in view of ample evidence available on the record especially in the shape of Ex.P-2,P-4,P-6 and statement of the appellant-plaintiff ? RSA No.1028 of 2008 5 (iii) Whether the learned courts below were justified in law in commenting upon the merits of the present controversy, when the suit was itself found to be allegedly not maintainable ? (iv) Whether the learned courts below were justified in law in holding that plaintiff-appellant is not the sole proprietor of the suit property ? (v) Whether the evidence on the record has been misread and misinterpreted by the learned courts below ? (vi) Whether the impugned judgments and decrees are based on conjectures and surmises ? It is also relevant to mention here that along with this appeal the appellant also filed C.M.No.12385-CI of 2009 under Order XLI rule 27 of the Code of Civil Procedure for permitting to place on record a certified copy of the affidavit dated 15.1.1995 of Gurcharan Singh, photo copy of which is already on the record of the case as Ex.P6. In this respect the contention of the learned counsel for the applicant-appellant is that the aforesaid affidavit was relevant and necessary for the just and proper decision of the present controversy. The record of the case was perused and it was found that it is not in dispute that exhibition of the aforesaid document was objected to by the counsel for the defendant on the ground of being a photo copy. However, from the record, it is found that at the time of examination of PW2 who is the scribe of the document, it has come on record that the original document was seen by him and returned. In view of this fact, learned counsel for the respondent did not contest this application. Thus, the certified copy of the aforesaid affidavit is taken on record, however, the evidentiary value of this document (Ex.PB) shall be RSA No.1028 of 2008 6 determined separately, if need be. In support of his case, learned counsel for the appellant has vehemently argued that findings of the Courts below with regard to the non maintainability of the instant suit are totally unjustified, illegal and contrary to the evidence available on the record. According to the learned counsel for the appellant, the plaintiff-appellant was dispossessed from the suit property after the filing of the instant suit which stands corroborated from the various documents placed on record including the affidavit Ex.P6 wherein Gurcharan Singh one of the accused in the criminal case had admitted that he along with respondent and other persons forcibly dispossessed the respondent from the suit property in the evening of 23.10.1992. It has been further submitted that the lower Appellate Court had held that the plaintiff- appellant was put in possession of the suit property on 24.1.1988, and therefore, there was no occasion for the Courts below to disbelieve the possession of the plaintiff-appellant over the suit property at the time of filing of the suit as the presumption with regard to continuity of possession was in his favour. According to the learned counsel for the appellant the evidence depicting the possession of the appellant over the suit property at the time of filing of the suit has not been appreciated by the Courts below, and therefore, the findings of the Courts below suffers from perversity and are liable to be set aside. It was further submitted by the learned counsel for the appellant that finding of the Courts below that the appellant was not the sole proprietor of M/s Parkash Rice Mills was also against the evidence on record. On the basis of the aforesaid arguments, learned counsel for the appellant has vehemently argued that the substantial questions of law, as submitted above, arise in this appeal, and the findings of the Courts below RSA No.1028 of 2008 7 are liable to be set aside the suit of the plaintiff-appellant deserves to be decreed. On the other hand, learned counsel for the respondent has vehemently argued that both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that neither the appellant was owner of the suit property nor in possession of the same at the time of filing of the suit. Hence, no fault can be found with the findings of the Courts below whereby suit of the plaintiff-appellant has been dismissed as not maintainable. Thus, the appeal having without any merit, is liable to be dismissed. I have heard the learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. The short point before the Courts below in the present suit was, whether the plaintiff-appellant was owner in possession of the suit property at the time of filing of the suit. The aforesaid question is purely a question of fact. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that on the date of filing of the suit the appellant was not in possession of the suit property. The contention of the learned counsel for the appellant before this Court is that the findings of the Courts below are perverse and contrary to the evidence on record. According to the learned counsel for the appellant, the evidence on record has not been rightly appreciated and material evidence in favour of the plaintiff has been ignored. A reference has been made to the affidavit dated 15.1.1995 of Shri Gurcharan Singh Ex.P6 wherein the aforesaid Gurcharan Singh has stated that he along with respondent had dispossessed the plaintiff from the suit property on RSA No.1028 of 2008 8 23.10.1992. The reliance of the learned counsel on the aforesaid affidavit is misplaced. No doubt PW2 has proved on record the fact that the aforesaid affidavit was scribed by him. However, it has not been proved that the aforesaid affidavit was signed/executed by aforesaid Gurcharan Singh as he was never produced in Court. It is well settled that the mode of proof is not dispensed with simply because a document has been exhibited on record. Thus, no reliance can be placed on the aforesaid document. While considering the question whether the appellant was in possession of the suit property at the time of filing of the suit has been dealt with by the lower Appellate Court as under:- “ In the present suit for permanent injunction filed by the plaintiff, the question of possession is of material significance. It is the case of the plaintiff that he was given possession of the entire property by the defendant and his father on 24.1.1988. It has already been held above that the contract for sale was duly executed by the defendant and his father and it is a legal and valid document. It is clearly mentioned in this document that possession of the property was handed over to the plaintiff purchaser on 24.1.1988. The defendant has tried to put forward a story that the possession of the property was actually never delivered and the keys of the Rice Mill were only handed over to Brij Bhushan during the season running between October to April. The said story is unnatural and unbelievable. There is no reason why the purchaser Brij Bhushan would allow the defendant to continue in possession of the suit property after the execution of the contract for sale Ex.PW9/A which clearly postulates the transfer of possession of the property to him. Moreover, the plaintiff has led sufficient and clear evidence regarding his possession. He has proved that the property had been given on lease by him to M/s Har Har Mahadev Rice Mill. The plaintiff besides examining himself as P.W.11 has also RSA No.1028 of 2008 9 examined the officials of State Bank of India as P.W.4 and Canara Bank as P.W.6 to prove the lease of Sheller to M/s Har Har Mahadev Rice Mill, vide lease Ex.P.W.11/E. It is next the case of plaintiff that on 20.10.1992, the defendant came on the suit property along with his workers with an intention to lock up the premises. But this illegal act was foiled by the timely intervention of the respectables. The plaintiff filed the present suit on 21.10.1992 and he obtained an ad interim injunction against the defendant on 22.10.1992. the plaintiff has tried to prove that the defendant along with other hooligans had again entered the suit property on 23.10.1992 and committed various acts of dacoity, and the actual dispossession took place on 23.10.1992, i.e. After the passing of order of injunction by the trial court, and so the plaintiff was entitled to a decree for possession, and there was no need to amend the plaint for that purpose. The aforesaid submission of the plaintiff cannot be accepted. It is clear from the evidence that the alleged act of dispossession had actually taken place on 22.10.1992. the plaintiff has himself proved on the file an application Ex.P2, which was filed by one Phool Singh (PW.10) toS.H.O. Police Station Siwan on 22.10.1992. Phool Singh was employed as Chowkidar in the Rice Mill. As per Phool Singh, thedefendant along with other persons had come to the said Rice Mill at about 2.00 p.m. and they had beaten him up and snatched the keys of Mill from him. Phool Singh saved his life by running away from the spot after jumping the boundary wall. He had taken a bus to Kaithal, where he went to Brij Bhushan, but he was not available and then he had gone with Sanjay and filed the said application Ex.P2. Thereafter, on 23.10.1992 another application Ex.P.4 was filed by Deepak Goel to Superintendent of Police, Kaithal, reiterating the same facts that defendant and his accomplices had forcibly taken keys of the premises and praying that the keys be returned to them. From 22.10.1992 RSA No.1028 of 2008 10 onwards till date. The keys are with defendant. On going through the said documents and the statement of Phool Singh, it becomes clear that the possession was taken by the defendant on 22.10.1992. It is true, that the said act of taking possession was illegal and the defendant had no justification for the same. However, the remedy of the same was a suit for possession and not a suit for perpetual injunction. Xxx xxx xxx xxx”. Moreover, this Court in a recent judgment in the case of Ashu Kumar v. Smt.Narender Kumari, 2010(1)RCR 217, has authoritatively laid down that in a Regular Second Appeal the High Court is not to re- appraise the evidence and is to interfere only if any substantial question of law arises and as the Legislature never intended second appeal to become a third trial on facts. In the present case, on the basis of the material on record it cannot be argued that the findings recorded against the appellant could not have been recorded by the Courts below. It is also well settled that if it was possible to take two views, the High Court will not interfere in its jurisdiction under Section 100 of the Code of Civil Procedure to take a different view on the aforesaid findings. Thus, no substantial question of law arises in this appeal. No merit. Dismissed. March 23, 2010 ( Rakesh Kumar Garg) rk Judge