R.S.A. No. 2884 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2884 of 2010 (O&M) Date of decision : 17.8.2010 ... Karam Singh ................Appellant vs. Narinder Singh @ Nanda and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Amit Jain, Advocate for the appellant Sh. N.K. Verma, Advocate for the caveator-respondents. ... K.C. Puri, J. This is a regular second appeal preferred by the plaintiff- appellant against the judgment dated 9.12.2009, passed by Sh. P.S. Virk, Additional District Judge, Fatehgarh Sahib, vide which the appeal preferred by the plaintiff-appellant against the judgment dated 12.5.2009 passed by Mrs. Navjot Sohal, Additional Civil Judge (Senior Division), Fatehgarh Sahib, was dismissed. Briefly stated, Karam Singh-plaintiff filed a suit for permanent injunction restraining the defendants from interfering in his peaceful possession over the disputed land on the allegation that plaintiff and defendants are resident of village Amrala, Tehsil Khamanon, District Fatehgarh Sahib. Plaintiff alongwith his brother R.S.A. No. 2884 of 2010 -2- and other co-sharers are in actual physical possession of the suit property. The suit property fell into the share of the plaintiff through partition proceedings instituted on 19.11.2002 decided on 23.6.2003. Defendants have no concern or connection with the suit land and they are threatening to interfere over the suit property. Upon notice, defendants No. 1 and 2 filed written statement taking preliminary objections that suit is not maintainable in present form, that the plaintiff is estopped by his own act and conduct to file the suit, that the suit is barred by limitation, that plaintiff has no cause of action. On merits, it is admitted that the parties are resident of village Amrala. However, it is denied that the plaintiff is not co- sharer in the suit property. It is alleged that defendants are owners in possession of the suit property since the time of consolidation. The partition proceedings are wrong. The defendants were not the party to the partition proceedings and are as such the same is not binding upon the defendants. It is further stated that sons of defendants are owners in possession of the suit property. Replication was filed by the plaintiff controverting the pleas of the written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether plaintiff is in possession of suit land? OPP. 2. Whether plaintiff is entitled to injunction as prayed for? OPP. 3. Whether the suit is not maintainable? OPD 4. Whether plaintiff is estopped by his own act and conduct to R.S.A. No. 2884 of 2010 -3- file the suit? OPD 5. Whether the suit is within limitation? OPD 6. Whether the plaintiff has no locus standi or not cause of action to file the suit? OPD 7. Relief. In order to prove the case, plaintiff examined PW Amar Singh and himself also appeared as PW. In rebuttal, defendants examined DW Narinder Singh, DW Sohan Singh, DW Balwinder Singh and closed the evidence after tendering certain documents. Learned trial Court has taken up issues No. 1 and 2 together and returned the finding on these issues against the plaintiff and in favour of the defendants. Issues No. 3 to 6 were decided against the defendants. However, in view of finding on issues No. 1 and 2, the suit of the plaintiff was dismissed vide judgment dated 12.5.2009 passed by Mrs. Navjot Sohal, Additional Civil Judge (Senior Division), Fatehgrah Sahib. Feeling dissatisfied with the above said judgment, the plaintiff-appellant filed the Ist appeal, which was heard and dismissed by Sh. P.S. Virk, Additional District Judge, Fatehgarh Sahib, vide judgment dated 9.12.2009. Still feeling dissatisfied with the judgments dated 9.12.2009 and 12.5.2009, referred to above, the plaintiff-appellant preferred the regular second appeal. The appellant in para No. 6 of the grounds of appeal, has mentioned that following substantial questions of law are involved in the present appeal:- R.S.A. No. 2884 of 2010 -4- (a) Whether the approach of the learned Courts below in misreading and misconstruing the material documentary as well as oral evidence led by the appellant while dismissing the suit, is not illegal and can be sustained in law? (b) Whether in the facts and circumstances of the instant case, the approach of the learned Courts below in picking up stray sentence from the statement of the appellant as his admission and thereby dismissing his suit, can be sustained in law? Learned counsel for the appellant has submitted that both the Courts below have given much importance to the statement of the plaintiff-appellant. Both the Courts below have picked up sentences from the statement of plaintiff-appellant in which he has admitted the possession of defendants. It is submitted that his statement is to be read as a whole. He has categorically stated in the examination-in- chief that he is the owner in possession of the suit property. The defendants have no concern with the said suit property. In the revenue record, plaintiff is in possession of the suit property as co-sharer. So, both the Courts below have misread and misinterpreted the evidence on the file. Counsel for the caveator-respondents has supported the judgments of the Courts below. I have heard counsel for the both the sides and have also gone through the file of the case. Both the Courts below have returned a finding of fact that R.S.A. No. 2884 of 2010 -5- plaintiff has failed to prove that he is in possession of the suit property. The plaintiff has admitted that defendants are in possession of the suit property. The revenue record produced by the plaintiff also does not prove the exclusive possession of the plaintiff over the suit property. So, the finding of fact recorded by both the Courts below that plaintiff has failed to prove his possession over the suit property, cannot be interfered in the regular second appeal, more so, when there is no reason to interfere the said finding. Both the Courts below have not simply taken into account the statement of the plaintiff, but have also considered the revenue record. There is nothing on the file that judgments of both the Courts below is the result of misreading and misinterpreting the evidence on the file. It cannot be said that document on the file has been construed or the oral evidence has not been appreciated in the right perspective. Mere admission of the plaintiff is not the basis for arriving at the conclusion that plaintiff has failed to prove the possession over the suit property. So, in view of the above discussion, both the substantial questions of law raised above, stand answered against the appellant. Consequently, the appeal is without any merit and the same stands dismissed. CM No.8652-C of 2010, filed for injunction, stands dismissed since the main appeal has been decided. ( K.C. Puri ) 17.8.2010 Judge chugh