R.S.A. No. 1978 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1978 of 2009 (O&M) Date of Decision : 14.5.2009 Hoshiar Singh Meena .......... Appellant Versus Ganeshi ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Dinesh Ghai, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5808-C of 2009 This application under Section 151 of the Code of Civil Procedure, has been moved for condoning the delay of 309 days, in refiling the appeal. For the reasons stated in the application, the delay of 309 days in refiling the appeal is condoned. C.M. stands allowed. C.M. No. 5807-C of 2009 & C.M. No. 5809-C of 2009 This application under Section 151 of the Code of Civil Procedure has been moved on behalf of the applicant / appellant for placing on record the documents Annexures P-1 & P-2. In absence of an application under Order 41 Rule 27 of CPC making out a case for leading additional evidence, there is no provision R.S.A. No. 1978 of 2009 2 under law by which the documents can be placed on record in regular second appeal. The application is dismissed being not competent. C.M. No. 5811-C of 2009 This is an application under Order 26 Rules 1, 9 & 10 read with Section 151of the Code of Civil Procedure, for appointment of Local Commissioner. In the application it is pleaded, that in order to determine the exact position, it would be necessary to appoint a local commissioner. A prayer has been made, that a Local Commissioner be appointed at the cost of the defendant / appellant to visit the spot to determine the exact position. This application is totally misconceived. The learned Courts below on the basis of documentary and oral evidence have recorded a concurrent finding of fact. There is no ambiguity nor the findings are outcome of misreading which is required to be clarified by appointment of Local Commissioner. The application being misconceived, is ordered to be dismissed. R.S.A. No. 1978 of 2009 & C.M. No. 5810-C of 2009 This regular second appeal is directed against the judgment and decree dated 29.3.2008, passed by the learned Courts below vide which suit filed by the plaintiff / respondent, for permanent injunction restraining the defendant / appellant herein from interfering in the possession and ownership of the plaintiff / respondent, has been ordered to be decreed. The plaintiff claimed, that he was owner in possession of the property in dispute and, therefore, was entitled to injunction against the R.S.A. No. 1978 of 2009 3 defendant / appellant, from interfering in his peaceful possession. The suit was contested, on the plea that the plaintiff was not in possession over the suit property. The suit property was claimed to be under the co-ownership of Ram Chand and Kishori Lal, who were said to be in physical possession of the land in dispute since the year 1962. The demarcation report of the plaintiff / appellant was also disputed. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, that the plaintiff / respondent was owner in possession of the property in dispute, which was a vacant land. The learned Courts held, that as the possession of vacant land goes with the ownership thus it was plaintiff / respondent who was in possession of the property and decreed the suit. The learned counsel for the appellant contends that the appeal raises the following substantial question of law for consideration : Whether the judgment and decree passed by the learned Courts below is outcome of misreading of evidence, especially the admission of the plaintiff / respondent ? In support of the substantial question of law the learned counsel for the appellant has referred to the cross-examination of the plaintiff / respondent to contend, that the plaintiff failed to connect the site plan with the property in dispute, as he gave wrong description of distance of his residence from the place of dispute. It is contended, that the learned Courts below have misread the evidence to record the finding of possession, which cannot be sustained. The findings were said to be perverse. R.S.A. No. 1978 of 2009 4 The contention raised by the learned counsel for the appellant cannot be accepted. The learned Courts below have relied upon the documentary evidence Ex. P-2 to Ex. P-9 showing, that it was the plaintiff / respondent who was owner in possession of the property. The learned Courts also held that, it was a vacant land and the possession goes with ownership. The plaintiff / respondent was held entitled to decree of injunction. The finding recorded by the learned Courts below are based on well settled principle of law, that the possession of the vacant land goes with the ownership. No fault can be found with the judgment and decree passed by the learned Courts below. The substantial question of law is answered against the appellant. No merit. Dismissed. 14.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE