IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2396 of 2008 Date of decision: 4th November, 2008 Rampal and another … Appellants Versus Mukesh and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Kaushik, Advocate for the appellants. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Rampal and others have filed the present regular second appeal. They had instituted a suit for permanent injunction with a prayer that defendants be restrained permanently for making an illegal encroachment and raising illegal and unauthorized construction. It was pleaded in the suit that the plaintiffs are co-sharers/ co-owners and they are in actual physical possession of the shamlat land described in the head note of the plaint. It was further stated that there is an old ancestral Well in the land in question and the same is worshipped as ‘Quian Wale Baba’ and that the defendants should be restrained from raising the construction. Notice was issued. Defendants appeared. They stated that they are owners in possession of the suit land. They got the site plan sanctioned from the Municipal Committee, Palwal and in pursuance of that, they have raised construction and are residing there along with their families. It was further stated that plaintiffs have no concern with the land. Regular Second Appeal No.2396 of 2008 Defendant Nos. 4 and 5 filed separate written statements. They raised preliminary objections regarding locus-standi and maintainability of the suit. In alternative, they prayed that because of adverse possession, they have become owners in possession of the property. They stated that houses built there on the land are in existence since 1977. They were having electric and water connections and the house tax has been assessed by the Municipal Committee. Gir Raj and Shiv Dayal appeared for plaintiff but their only examination in-chief was recorded and thereafter, they never come forward for cross-examination. Only evidence of Madan was recorded as PW-3 and Rampal plaintiff as PW-4. Defendant examined 11 witnesses and also tendered various documents. The learned trial Court took into consideration the evidence of Devi Ram Saini, House Tax Clerk DW-1, who proved that the defendants have been assessed for the house tax and have been paying tax. It was also taken into consideration that defendant No.2 Prem Chand has installed an ‘Atta Chakki’. DW-10 Shiv Kumar appeared and proved electric connection. Another witness was examined to prove water connection to the houses. The trial Court held that when a person is already in possession of the suit land, then suit for permanent injunction is not maintainable against that person. It further held that it has not been proved that the plaintiffs, being co-sharers, are in actual physical possession of the disputed land. Aggrieved against the same, appellants filed an appeal before the lower appellate Court. The lower appellate Court concurred with the findings of the trial Court. Lower appellate Court held that though, from the revenue record, it is proved that the appellants are co-sharers/ proprietors in the shamlat land, which comprises the suit land, the testimony of PW-3 and PW-4 Madan and Rampal have not been corroborated. It further 2 Regular Second Appeal No.2396 of 2008 noticed that they had admitted in the cross-examination that houses of respondents-defendant, over the suit land, were existing before filing of the suit. Counsel for the appellants states that there was an alternative prayer in the suit for grant of decree of possession. No evidence has been led. The witnesses, whose examination in-chief was recorded, had not come forward for cross-examination. Since there was a lack of evidence, therefore this prayer was not pursued before the two courts below. In view of the concurrent findings of fact recorded by the two courts below, no interference is called for, especially when counsel for the appellants has failed to formulate any substantial question of law. Hence, there is no merit in the present appeal and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 04, 2008 rps 3