IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2311 of 2011 Date of Decision : 24 th May, 2011 Jai Pal Singh ….Appellant Versus Amar Singh ….Respondent CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT : Mr. Sanjay Vij, Advocate for the appellant. * * * * * L. N. Mittal, J. (Oral) Respondent-plaintiff Amar Singh filed suit against defendant-appellant Jai Pal Singh alleging that the plaintiff is owner in possession of the suit land on which his residential house is existing. It is his ancestral property which fell to the share of his father Piare Singh and then fell to the share of plaintiff in family settlement. The plaintiff raised pucca construction instead of kacha construction which was existing earlier. There was a previous suit filed by defendant’s brother Sher Singh for partition against plaintiff’s father Piare Singh and uncle Sohan Singh. In the said suit, it was held that suit property was not joint property and it already stands partitioned. The said suit was dismissed on 02.08.1973. However RSA No.2311 of 2011 the defendant threatened to interfere in ownership and possession of the plaintiff over the suit property, without any right, title or interest therein. The plaintiff sought permanent injunction against defendant from doing so. It was also prayed that if the plaintiff is dispossessed from the suit house, then decree for possession be passed. The defendant broadly denied the plaint averments. The defendant alleged that he purchased the suit property by oral sale from plaintiff’s brothers and subsequently writing dated 22.05.1985 was executed. Since then, defendant is owner in possession of the suit property. Various other pleas were also raised. Defendant also made counter-claim seeking declaration that he is owner in possession of the suit land. Learned Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 15.10.2009 decreed the plaintiff’s suit for possession of the suit property and dismissed the defendant’s counter-claim. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated 15.02.2011. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In the previous litigation, plaintiff’s father was held to be owner of the suit property. Even the defendant has alleged that he purchased the suit property from plaintiff’s brothers, thereby RSA No.2311 of 2011 admitting the previous ownership of plaintiff’s father over the suit property. However, the defendant has miserably failed to prove that he has purchased the suit property and has become its owner. The defendant claimed oral sale in his favour, reduced to writing subsequently. However the said writing depicts that the alleged sale was for Rs.6500/-. Obviously there could be no such oral sale or sale through unregistered writing. Admittedly there is no registered sale deed in favour of the defendant. Consequently no title or ownership has been transferred in favour of defendant. On the contrary, plaintiff is owner or at least cosherer in the suit property having inherited it from his father. Consequently, plaintiff’s suit has been rightly decreed for possession of the suit property. Defendant has no right to retain the possession thereof because he is not owner thereof. Learned counsel for the appellant vehemently contended that plaintiff as PW-1 and Harbir as PW-2 admitted that defendant is in possession of the suit property, but the plaintiff has filed suit for permanent injunction, which is not maintainable. The contention is misconceived and devoid of merit. Firstly, Amar Singh plaintiff and Harbir stated that defendant is in possession of the suit property for the last two years. In other words, the defendant, according to this evidence, came in possession of the suit property during the pendency of the suit. Secondly, the plaintiff has also claimed the relief of possession of the suit property in the suit itself. RSA No.2311 of 2011 Consequently, plaintiff’s suit has been rightly decreed for possession of the suit property. The defendant is not proved to be owner of the suit property and therefore, his counter-claim has been rightly dismissed by the courts below. For the reasons aforesaid, it is apparent that there is no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiff and against the defendant is fully justified by the evidence on record and rather also in view of admitted pleadings and evidence. Consequently, the said finding does not warrant interference in second appeal because the same is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 24th May, 2011 ‘raj’