Regular Second Appeal No.1473 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-2.8.2010 Pehlad Singh son of late Kidara ...Appellant Versus Rajbir Singh son of late Maha Singh ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Pardeep Chahar, Advocate for the appellant. Mr.Sandeep Sharma, Advocate for the respondent. M ehinder S ingh S ullar , J . (Oral) The epitome of the facts, relevant for disposal of present appeal and emanating from the record, is that Rajbir Singh son of late Maha Singh respondent-plaintiff (hereinafter to be referred as “the plaintiff”) filed the present suit for a decree of possession against Pehlad Singh son of late Kidara appellant- defendant (hereinafter to be referred as “the defendant”). 2. The case set up by the plaintiff, in brief, in so far as relevant, was that after the completion of the partition proceedings, the land in dispute was allotted and possession was delivered to his father in the year 1987. The mutation to that effect was also sanctioned on 6.3.1989. In the wake of death of his father in the year 1990, the plaintiff became the owner and in possession of the suit property. Similarly, the defendant was allotted his share and the possession of the land was also delivered to him. Concisely, the plaintiff claimed that he is the owner, but the defendant has encroached upon the disputed property without any legal right. He asked him (defendant) to remove the same, but in vain, which necessitated him to file the suit. On the basis of aforesaid allegations, the plaintiff filed the suit seeking a decree of possession against the defendant in the manner indicated here-in-above. Regular Second Appeal No.1473 of 2008 2 3. The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, Court fees and locus standi of plaintiff. On merits, the defendant denied the factum of partition and delivery of possession of their respective land. He has denied the ownership of the plaintiff over the suit property and claimed his long possession. Succinctly, according to the defendant, he has become the owner of the disputed property by way of adverse possession. It will not be out of place to mention here that the defendant has 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 plaintiff 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. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 6. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decreed the suit of the plaintiff and directed the defendant to deliver the possession of the encroached portion of the suit property to him within a period of two months, by virtue of impugned judgment and decree dated 16.11.2006. 7. Aggrieved by the judgment and decree of the trial Court, the appellant-defendant filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 17.7.2007. 8. The appellant-defendant still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 9. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. Regular Second Appeal No.1473 of 2008 3 10. However, the main contention of the learned counsel that since the father of the defendant had died during the partition proceedings and was not represented by any person, so, the partition proceedings were illegal and the plaintiff cannot take any benefit of his ownership of suit property, is not only devoid of merit but misplaced as well. 11. As is evident from the record, according to the plaintiff, his father became the owner and in possession of the disputed property in the wake of partition of the land, while the defendant became the owner of the other property under his possession. Assuming for the sake of argument (though not admitted), Kidara, father of the defendant, had died during the pendency of the partition proceedings, then, the whole proceedings cannot be termed to be vitiated, because during the course of partition, there were other several co-sharers including him (Kidara) in the joint khewat. A heavy burden of proof was upon the defendant to prove as to how and in what manner, the partition proceedings are illegal and not binding upon him. He has miserably failed in this relevant connection. On the contrary, it stands proved on record that the plaintiff became the owner and in possession of the suit land after the death of his father. Therefore, I am of the view that the courts below have rightly accepted the claim of plaintiff and negatived the plea of adverse possession of the defendant in this regard. 12. No meaningful argument has been raised by the learned counsel for the appellant-defendant to assail the findings of the Courts below in this context. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-defendant, in this relevant behalf, have already been duly considered and dealt with by the Courts below. 13. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant 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 Regular Second Appeal No.1473 of 2008 4 the concurrent findings of fact that (i) the defendant has failed to prove that the partition proceedings are illegal, null, void and not binding on him; (ii) he has further failed to prove the acquisition of ownership rights by way of adverse possession and that he has raised the construction over the property in dispute in the year 1978; (iii) on the other hand, the plaintiff has succeeded in proving that he is owner of the land in dispute and the defendant has encroached upon five marlas of land out of disputed land and (iv) as the defendant is in illegal and un- authorized possession of the suit property, therefore, he is liable to deliver its possession to the plaintiff. Such pure concurrent findings of fact based on the 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-defendant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 14. Meaning thereby, 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, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 16. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 2.8.2010 Judge AS