Regular Second Appeal No.2345 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2345 of 2011 Date of Decision:-5.9.2011 Sadhu Ram ...Appellant Versus Dimple Kumar and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Deepak Aggarwal, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) The epitome of the facts, culminating in the commencement, relevant for the purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Sadhu Ram appellant- plaintiff No.1, Pawan Kumar and Ashok Kumar sons of Kunj Lal proforma- respondent Nos.3 and 4-plaintiff Nos.2 and 3 (for brevity “the plaintiffs”) filed the suit for a decree of permanent injunction, restraining Dimple Kumar and his mother Padma wife of Gian Chand respondent Nos.1 and 2-defendants (for short “the defendants”) from raising any type of construction or making improvement in any manner in the property in dispute, inter-alia pleading that the plaintiffs and defendants are joint owners and in possession to the extent of 1/8th share each in the property in question, situated within the revenue limits of village Nehianwala, Tehsil and Distt.Bhatinda. The application for partition of the suit property between the parties was stated to be pending before the Assistant Collector Ist Grade. According to the plaintiffs that the defendants with malafide intention to cheat them, are trying to raise construction on the disputed portion, in order to get undue benefit in the partition proceedings by showing their exclusive possession. They asked the defendants not to do so, but in vain, which necessitated them to file Regular Second Appeal No.2345 of 2011 (O&M) -2- the suit. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of permanent injunction against the defendants in the manner indicated hereinabove. 2. The defendants contested the suit and filed the written statement, raising certain preliminary objections of, maintainability of the suit, concealment of facts, cause of action and locus standi of the plaintiffs. The defendants claimed that the plaintiffs had earlier filed civil suit bearing No.659 of 19.12.2003 regarding the same very property, which was dismissed with costs by the Court of Additional Civil Judge (Senior Division), by virtue of judgment dated 7.6.2005 (Ex.D1). The appeal filed by them was also dismissed by the appellate Court, by means of judgment and decree dated 11.6.2005 (Ex.D2 and Ex.D3) respectively. The regular second appeal filed by the plaintiffs was dismissed as well by the High Court, vide judgment dated 7.10.2005. It was claimed that defendant No.1 has already sold his share to defendant No.2 and he is left with no share in the property in dispute and she (defendant No.2) is in exclusive possession of her property. In all, according to the defendants that plaintiffs had got no right, title and interest in the suit property. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. In the wake of pleadings of the parties, the trial Court framed the essential issues for adjudication for proper adjudication of the case. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 4. The trial Court dismissed the suit of the plaintiffs, by way of impugned judgment and decree dated 22.1.2010. 5. Aggrieved by the decision of the trial Court, the plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, by virtue of impugned judgment and decree dated 9.2.2011. Regular Second Appeal No.2345 of 2011 (O&M) -3- 6. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeal. 7. After hearing the learned counsel for the appellant-plaintiff, going through the record with his valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 8. As is evident from the record that the earlier suit filed by the plaintiffs has already been dismissed by the trial Court, by means of judgment (Ex.D1), which had attained the finality. Once the civil suit on the same cause of action filed by the plaintiffs has already been dismissed, then, to me, the present suit is not maintainable and the trial Court has rightly negatived their claim. 9. Not only that, the decision of the trial court was upheld by the Ist appellate Court, by way of impugned judgment dated 9.2.2011, which, in substance, is (para 8) as under:- “Resultantly, this Court is of the opinion that the relief of injunction is a relief of equity. Equity does not lean in favour of a wrong doer. When the appellant has not approached the Court with clean hands, he is not entitled to any relief of injunction, as he has concealed the previous litigation qua the same subject matter. Moreover, the respondents, who are co-sharer in the joint property, can raise the construction at their own risk and cost and which is always subject to the partition.” 10. The learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant behalf. 11. Meaning thereby, the Courts below have 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, they have recorded the concurrent findings of fact that once the plaintiffs have not approached the Court with clean hands, then, they are Regular Second Appeal No.2345 of 2011 (O&M) -4- not entitled to the relief of injunction as they have concealed the previous litigation qua same subject matter. Such concurrent findings of fact based on the appraisal of 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-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 12. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 13. In this manner, 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, so, no interference is warranted in the impugned judgments and decrees of the Courts below, in the obtaining circumstances of the present case. 14. No other point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiff. 15. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 5.9.2011 Judge AS Whether to be referred to reporter?Yes/No