R.S.A. No. 224 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 494-C of 2009 and R.S.A. No. 224 of 2009 (O&M) Date of Decision: 25.5.2009 Sarabjit Singh ...Appellant. Versus Sukhdev Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Arun Jindal, Advocate for the appellant. AJAY KUMAR MITTAL, J. In this regular second appeal at the behest of the defendant, challenge is to the judgment and decree dated 24.3.2008 passed by the first appellate court affirming that of the trial court dated 30.3.2005 vide which the suit of the plaintiff for possession and permanent injunction was decreed. The facts necessary for the disposal of the present appeal are that the plaintiff who is father of the defendant purchased one room marked as ABCD in the site plan, on the first storey of House No. 136/4 (Old Number 235-A), situated at Guru Nanak Nagar, Badungar, Patiala (hereinafter referred to as the “suit property”) vide sale deed dated 7.11.1979 and was in possession of the same. It was pleaded that the R.S.A. No. 224 of 2009 -2- defendant had no concern with the suit property but he came into possession of the same illegally and had been residing at a separate place after locking the suit property. It was further pleaded that the defendant filed a suit on 29.11.1995 for partition and joint possession of the suit property but the same was dismissed vide judgment and decree dated 25.5.1998 and the appeal filed there against was also dismissed by the Additional District Judge, Patiala, vide judgment and decree dated 22.3.1999. The defendant had not filed any further appeal against the aforesaid judgment and decree and, therefore, the judgment dated 25.5.1998 had attained finality between the parties. It was also pleaded that as the possession of the defendant over the suit property was unauthorized and the plaintiff was entitled to get the same. Hence, the plaintiff filed a suit for possession and for permanent injunction restraining the defendant, his servants, agents from interfering in any manner in the suit property. To controvert the claim of the plaintiff, the defendant filed a written statement raising various preliminary objections. It was pleaded that the plaintiff purchased the suit property out of the joint Hindu family funds and constructed the same and, therefore, the same had become ancestral joint Hindu family property of the parties and the defendant being son of the plaintiff had a share in the same by his birth. It was further pleaded that the plaintiff gave two rooms set to the defendant on the first floor and he was residing there along with his wife. According to the defendant, the plaintiff and his another son broke open the door of the room in occupation of the defendant and it was only when a complaint was made to police, the possession of one room was given to R.S.A. No. 224 of 2009 -3- him and, thus, the plaintiff and his another son had made his life a hell and he was forced to live in a separate portion of the house in dispute. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the trial court framed various issues and on appreciation of the oral as well as the documentary evidence led by the parties held that the the suit property was self-acquired property of the plaintiff and, therefore, he was entitled to get the possession of the portion of the house in question. Further, it was held that the defendant had failed to prove that the suit property was ancestral property being joint Hindu family property. Accordingly, the trial court vide judgment and decree dated 30.3.2005 decreed the suit and held the plaintiff entitled to possession as prayed for and restrained the defendant from interfering in any manner in the suit property. Feeling aggrieved, the defendant took the matter in appeal and the lower appellate court vide judgment and decree dated 24.3.2008 affirmed the findings recorded by the trial court and dismissed the appeal. I have heard the learned counsel for the appellant and perused the impugned judgments with his assistance. Learned counsel for the appellant has made an endeavour to persuade this Court to re-appreciate the evidence available on record to differ with the findings recorded by the courts below but the same was not possible in view of the provisions of Section 100 of the Code of Civil Procedure. He could not point out any illegality or perversity in the judgments and decrees passed by the courts below warranting R.S.A. No. 224 of 2009 -4- interference by this court in the regular second appeal. The courts below have concurrently held that the defendant was in unauthorized possession of the suit property and the same was self-acquired property of the plaintiff. On the basis of the aforesaid findings, the courts below have held the plaintiff entitled to possession of the suit property. No question of law, much less a substantial question of law arises in this appeal. Finding no merit in this appeal, the same is hereby dismissed with no order as to costs. There is a delay of 46 days in filing the appeal. An application bearing C.M. No. 494-C of 2009 has been filed for condonation of the same. Since the appeal has been dismissed on merits, no separate order is being passed in the application for condonation of delay in filing the appeal and the same is disposed of as such. May 25, 2009 (AJAY KUMAR MITTAL) gbs JUDGE