RSA No.2929 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2929 of 1985 Date of decision 10.08.2010. Amin Lal and others ...... Appellants. versus Beeja and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Anil Bansal, Advocate for the appellants. Mr. V.S.Punia, Advocate for respondent Nos.2 and 3. K.C.PURI, J. This is a regular second appeal directed by plaintiff-appellants against the judgment and decree dated 16.9.1985 passed by Mr. Arjan Singh, Additional District Judge, Kurukshetra vide which the appeal preferred by the plaintiff-appellants against the judgment dated 17.3.1983 passed by Shri B.B.Parsoon, Sub Judge Ist Class, Kaithal dismissing the suit of the plaintiff stood dismissed. Shorn off unnecessary details, the case of the plaintiffs as set forth in the plaint is that they had been using the bara in dispute for the last twenty years (from the date of filing the original civil suit) for tethering their cattle as also keeping their agricultural implements. They were RSA No.2929 of 1985 2 threatened by the respondents with interference by the latter. On 25.6.1979, the respondents allegedly went to the spot though their efforts to take forcible possession over the bara were foiled. Hence the suit. Defendant-Beeja in his written statement denied the ownership and possession of the appellants over the bara in dispute. He further challenged the locus standi of the appellant-plaintiff to file the suit. The suit is not maintainable and is a result of collusion between the appellant and defendant Nos.2 and 3. In a separate written statement defendant No.3 Dal Singh alleged that the appellants had suppressed material facts from the Court. He further pleaded that in the past defendant No.1 Bija and Smt. Rajni threatened to dispossess the defendant No.2 and 3 from the suit property and accordingly they filed civil suit bearing No.305/641/443 of 1968-70 titled Maula vs. Bija), which was dismissed and on appeal they win the litigation in appeal and were declared owner in possession of the bara in dispute and defendant No.1 was restrained from interfering over the possession of bara in dispute. It has been alleged that appellants were neither owners nor in possession of the bara in dispute and prayed for dismissal of the suit. Following issues were framed :- 1. Whether the plaintiffs are owners and in possession of the property in suit detailed in para No.1 of the plaint ?OPP. 2. Whether the plaintiff has no locus standi to file the suit ? OPD 3. Whether the suit is not maintainable ?OPD 4. Whether the suit is the result of collusion between plaintiffs and defendants No.2 and 3 ?OPD. RSA No.2929 of 1985 3 5. Relief. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 17.3.1983. Feeling dissatisfied with the judgment and decree dated 17.3.1983, plaintiffs preferred an appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 16.9.1985. Still feeling dissatisfied with the above judgments and decree passed by both the Courts below, plaintiff-appellants have preferred the present regular second appeal before this Court. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellants on 27.7.2010 has placed on record the substantial questions of law, which are reproduced as under :- 1. Whether a suit for permanent injunction can be dismissed by recording that the plaintiff is not the owner in the absence of recording the finding with regard to the possession of the plaintiff ? 2. Whether a fact pleaded, if goes unrebutted, is deemed to be an admission ? 3. If the question No.2 is answered in affirmative then, whether on admitted factum of possession of plaintiff by the respondent can the suit for permanent injunction be dismissed ? 4. Whether a compromise deed can be negated when the same has been duly proved and that is also when all the parties to the suit were the parties in the compromise ? 5. When the statements of the witnesses are disbelieved can that be read partially to corroborate the boundaries of a property ? RSA No.2929 of 1985 4 6. When a plaintiff is able to prove his possession although could not prove his ownership, whether on being proved that the plaintiff is in possession, whether suit for permanent injunction can be dismissed ? Learned counsel for the appellants has submitted that the First Appellate Court has returned the finding that the plaintiffs have not been able to prove their ownership over the suit property. It is submitted that it was merely a suit for permanent injunction. The ownership and possession of the plaintiffs over the suit property stands proved on the file. The compromise Ex.P-2 clinches the whole issue. Mangal Singh predecessor-in- interest of the appellant was held to be the owner in possession of 1/2 share of the suit property. The First Appellate Court has returned a finding that document Ex.P-2 is duly proved. That being a finding of fact cannot be challenged by the defendants. However, the finding recorded by the the First Appellate Court to the effect that plaintiffs have not been able to prove that Ex.P-2 relates to bara in question is against the facts and law. Half portion of the said bara is in possession of respondent Nos.2 and 3 whereas the other half portion, which is the subject matter of the present suit, remained in possession of Mangal Singh and after his death with the plaintiffs. The finding in the previous suit that defendant Nos. 2 and 3 have become owner of the land covered by that suit is not binding on the appellants as they were not parties to that appeal. It is submitted that fact regarding possession of plaintiff goes unrebutted and it amounts to deemed admission on the part of respondents. Even if, the plaintiffs/appellants have failed to prove the ownership, they are entitled to decree of injunction as no party can be allowed to dispossess except in due course of law. RSA No.2929 of 1985 5 Learned counsel for the respondents, on the other hand, have supported the judgment of both the Courts below. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The case of the plaintiffs as set forth in the plaint is that they are in possession of the suit property shown in the map and have been tethering their cattle and keeping the tractor-trolley, bricks and wooden etc. Both the Courts below have returned a finding that plaintiffs are neither owner nor in possession of the suit property. That being a finding of fact cannot be interfered in the regular second appeal. Admittedly, there is no title deed produced by the plaintiffs in respect of suit property. The reliance of the plaintiffs is in respect of compromise Ex.P-2. The First Appellate Court has returned a definite finding that plaintiffs have failed to prove that Ex.P-2 which relates to suit property. There is nothing on the file that defendants have admitted the possession of the plaintiffs over the suit property. Otherwise also, it is settled law that mere tethering cattle placing bricks, trolley and wooden etc, do not prove the possession of a party. It is nowhere pleaded that plaintiffs raised any construction over the suit property. So, I have no hesitation to hold that no substantial question of law has arisen in the present case and the question raised above does not exist at all. Both the Courts below have given unanimous finding that plaintiffs are neither owners nor in possession of the suit land. So, that being a finding of fact does not call for any interference. Consequently, the appeal is without any merit and the same stands dismissed. RSA No.2929 of 1985 6 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 10th, 2010 sv