RSA No. 1638 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1638 of 2009 Date of Decision: 25.08.2009 1. Malkiat Singh; 2. Ajit Singh; both s/o Durga Dass; 3. Vidhya s/o Hukam Chand; 4. Balbir Singh s/o Hukam Chand; all r/o village Saraina, Tehsil Mukerian, Distt. Hoshiarpur. ... Appellants Versus 1. Swaran Kaur w/o Parkash Chand d/o Durga Dass; 2. Varinder Kumar s/o Parkash Chand; 3. Vijay Kumar s/o Parkash Chand; 4. Sonu; 5. Paramjit; both d/o Parkash Chand (minor) sued through their mother Swaran Kaur, as their natural guardian, residents of Saraina, Tehsil Mukerian, Distt. Hoshiarpur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Manohar Dadwal, Advocate, for the appellants. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree RSA No. 1638 of 2009 2 dated 23.01.09, rendered by the Court of Additional District Judge, Hoshiarpur, vide which, it accepted the appeal of the plaintiffs/respondents, against the judgement and decree dated 16.10.06, rendered by the Court of Civil Judge (Junior Division), Dasuya, dismissing the suit of the plaintiffs/respondents. 2. The plaintiffs/respondents, are the legal heirs of late Parkash Chand son of Durga Dass, who expired, in the year 1988. During his life time, Parkash Chand, was in cultivating possession of the land, in dispute, measuring 3 kanals 11 marlas, and after his death, the plaintiffs, claimed themselves, to be in possession thereof. The defendants were stated to be head strong persons, as a result whereof, they were threatening to dispossess the plaintiffs, from the suit land, illegally and forcibly. The defendants, were many a time asked not to do so, but to no avail. On their final refusal, to desist from their nefarious designs, left with no other alternative, a suit for permanent injunction, was filed. 3. The defendants/appellants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit of the plaintiffs, was not maintainable, as they were not in possession of the suit land. It was admitted that Parkash Chand, died, in the year 1988, and during his life time, he remained, in possession of the suit property. However, after his death, the defendants, were in actual cultivating possession of the suit property, and they also constructed a haveli therein. It was stated that since the plaintiffs, were not in possession of the suit land, the RSA No. 1638 of 2009 3 question of their forcible dispossession therefrom, did not at all arise. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether plaintiffs are in possession of the suit property and entitled to permanent injunction prayed for? OPP (ii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the plaintiffs/respondents, which was accepted by the Court of Additional District Judge, Hoshiarpur, vide judgement and decree dated 23.01.09. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the defendants/appellants, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellants, submitted that the first Appellate Court, was wrong, in coming to the conclusion,that the plaintiffs/respondents, were in possession of the property, in dispute, being the legal heirs of late Parkash Chand son of Durga Dass. He further submitted that the first Appellate Court, was also wrong, in coming to the conclusion, that after purchasing the property, alongwith other co-sharers namely Swaran Singh, Balwant Singh, Gulzar Singh, RSA No. 1638 of 2009 4 and Sewa Singh, vide sale deed dated 15.07.86, the defendants, did not come into the possession of the same. He further submitted that the trial Court, was right, in dismissing the suit of the plaintiffs. He further submitted that the first Appellate Court, misread and misappreciated the evidence, resulting into recording of perverse findings, leading to the decreeing of suit of the plaintiffs. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the defendants/appellants, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. Parkash Chand son of Durga Dass, was the predecessor-in-interest of the plaintiffs. He RSA No. 1638 of 2009 5 purchased the suit property, from Balwant Kumar, vide sale deed dated 09.03.73. He was shown to be in possession of the property, in dispute, as owner, in P4 jamabandi, for the year 1976-77. Even in the jamabandi, for the year 1986-87, P6, jamabandi, for the year 1996-97, P2, and the jamabandi, for the year 2001-02, P3, Parkash Chand, was shown to be in possession of the property, in dispute. No doubt, the defendants, alongwith other co-sharers purchased land, measuring 3 kanals 2 marlas, out of khasra Nos. 61//8/1/ (4-4), 62//1/2(2-11), 61//5/2(3-16), 6/1(5-16), 62//10/2(3-0), 11(8-0), 61//7/1(3-11), total measuring 30 kanals 18 marlas, vide sale deed dated 15.07.86, exhibit D1. Except recital, in the sale deed, no document, was produced, on record, that the defendants/appellants, alongwith co-sharers came into possession of the land, in dispute. No doubt, Parkash Chand, died. Even after his death, his name, continued to be recorded, in the aforesaid revenue record, and he was shown, to be in possession thereof, as owner. Parkash Chand, PW1 and Radhey Singh, PW2, specifically stated that the plaintiffs, were in possession of the land, in dispute, and had sown crop therein. The claim of the defendants that they raised construction of haveli, over the land, in dispute, did not find corroboration, from the revenue record or any other document. Once, Parkash Chand, was recorded, to be the owner in possession of the property, in dispute, after his death, his legal representatives, who are the plaintiffs/appellants could be presumed to be in possession. Until and unless, they were legally evicted therefrom, the defendants, could not be said to be in possession of the property, in dispute. The RSA No. 1638 of 2009 6 first Appellate Court, was, thus, right in holding, that the plaintiffs, were entitled to the permanent injunction. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based, on the correct appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the appellants, thus, being without merit, must fail,and the same stands rejected. The judgement and decree of the first Appellate Court, are liable to be upheld. 11. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 25.08.2009 (SHAM SUNDER) Amodh JUDGE