R.S.A. No. 725 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 725 of 2009 (O&M) Date of Decision: 21.5.2009 Savitri Devi and others ...Appellants. Versus Roshan Lal ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Abhimanyu Sharma, Advocate for the appellants. AJAY KUMAR MITTAL, J. This regular second appeal filed by the defendants is directed against the judgment and decree dated 16.12.2008 passed by the first appellate court whereby that of the trial court dated 26.7.2006 dismissing the suit of the plaintiff for permanent injunction was set aside and the suit was decreed. Succinctly stated the facts of the case are that the plaintiff was in possession and occupation of SCO No. 38, Sector-26, Subzi Mandi, Chandigarh (hereinafter referred to as the “suit property”) and was running his business of sale of potatoes and onions in wholesale from the same as well as from the Phar in front of the same without any let or hindrance from any quarter. It was pleaded that the defendants were hawkers and squatting on the road in front of the suit property and R.S.A. No. 725 of 2009 -2- Phar preventing the entry of the plaintiff to his premises and even to load and unload the material from the trucks. It was further pleaded that the plaintiff requested the defendants to stop selling the potatoes and onion in big heaps from the road side but in vain. According to the plaintiff, defendant No.1 filed a suit for permanent injunction against him and others. The said suit was dismissed on the statement of the plaintiff that he would not dispossess defendant No.1 and others except in due course of law. The plaintiff filed a suit for permanent injunction restraining the defendants from encroaching upon the suit property and interfering in the peaceful entry and exit of the plaintiff to the suit property. Upon notice, the defendants filed a joint written statement raising various preliminary objections. It was pleaded that the plaintiff was in possession of the suit property and they were tenants of the front courtyard of the same at the monthly rent of Rs.700/- which were taken by them from the original owner-landlord. It was further pleaded that the defendants had made the regular payment of rent to the landlord- Pritam Singh till 1999 and after his death, the arrears of rent still stand against them and they were ready and willing to pay the said arrears of rent to the legal heirs of the deceased Pritam Singh. According to the defendants, all the shops, i.e. shop Nos.35 to 38, Sector 26, Chandigarh are located in one row and every shop is having the front courtyard and the owners of the shops had also let out the front courtyards on rent to so many persons and their tenants including the defendants were running their business of selling the vegetables. It was also pleaded that after the death of Pritam Singh, the plaintiff had got R.S.A. No. 725 of 2009 -3- executed some documents in his favour in connivance with one Mr. Kakoo. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. The trial court on appreciation of the oral as well as the documentary evidence led by the parties held that the plaintiff had failed to establish a case for grant of injunction. It was further held that the defendants were in occupation of the disputed portion for a long time and their possession was originated long back as tenants under the previous owners. Accordingly, the trial court vide judgment and decree dated 26.7.2006 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff approached the lower appellate court which vide judgment and decree dated 16.12.2008 accepted the appeal and set aside the judgment and decree of the trial court. Resultantly, the suit of the plaintiff was decreed. Hence, the present appeal by the defendants. Learned counsel for the appellants submitted that the findings recorded by the lower appellate court are contrary to the evidence on record and being based on misreading and misappreciation thereof, are perverse and legally unsustainable. Learned counsel further submitted that when the conclusions arrived at by the lower appellate court are contrary to the evidence available on record, a substantial question of law arises for consideration of this Court. I have heard the learned counsel for the appellants and have perused the record with his assistance. The lower appellate court on appreciation of the oral testimonies of the witnesses as well as the documentary evidence, had R.S.A. No. 725 of 2009 -4- recorded a finding that the defendants had failed to prove their legal and authorized possession over the area in dispute. The lower appellate court while accepting the appeal had restrained the defendants from encroaching upon the area on the road and Phar in front of the suit property and also from interfering in the peaceful exit and entry into the premises from the road side. No illegality or perversity could be pointed out in the findings recorded by the lower appellate court warranting interference by this Court in the regular second appeal. The learned counsel for the appellants made valiant efforts to persuade this Court to re-appreciate the evidence so as to arrive at a different conclusion than that of the lower appellate court which is not possible as the defendants had miserably failed to establish as to in what capacity they were occupying the Phar/Thara in question because they did not produce any rent receipt from their landlord, as alleged by them in the written statement. No question of law much less a substantial question of law arises in this appeal for consideration of this Court. In view of the above, finding no merit in this appeal, the same is hereby dismissed with no order as to costs. May 21, 2009 (AJAY KUMAR MITTAL) gbs JUDGE