R.S.A.No.607 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.607 of 2010 (O&M) Date of Decision: 10.02.2010 Reena ....Appellant Versus Mangti .....Respondent CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr.Munish Jolly Advocate for the appellant. * * * Rakesh Kumar Garg,J.(Oral) Civil Misc. No.1720-C of 2010 The evidence sought to be produced by way of additional evidence, was already in the knowledge of the appellant and in fact, the appellant was a party to the documets which are now sought to be produced. Thus, I find no ground to allow the additional evidence at this stage. Dismissed. R.S.A.No.607 of 2010 This is defendant's second appeal challenging the judgment and decrees of the courts below whereby, suit of the plaintiff-respondent for possession of the suit property was decreed. The brief facts of the case as alleged are that late Sangat Ram was the owner of the house in dispute which he purchased from one Pala Ram and executed agreement to sell, receipts and full and final payment of the consideration amount was made in the year 1992. Late Sangat Ram was married with one Sanno who expired in the year 1970. Late Sangat R.S.A.No.607 of 2010 (O&M) 2 Ram was not having any issue. Plaintiff is the real sister of late Sangat Ram. He was employeed with PGI, Chandigarh and expired on 08.09.2002 at Chandigarh. During his life time, mother of the defendant developed intimacy with late Sangat Ram but he never got married with her. The mother of the defendant also died living behind the defendant. She also used to visit the house of late Sangat Ram and she continued the visit even after the death of her mother. She got married to Naresh Kumar and started living in House No.4168, Maloya Colony, UT, Chandigarh. Defendant illegally trespassed over the suit property and is illegally occupying the same. Thus, the possession of the defendant over the suit property of a trespasser . A legal notice was issued to the defendant to hand over the vacant possession of the suit property. Defendant has not done so. Hence, the present suit was filed. The suit was contested by the defendant raising various preliminary objections. On merits, it was submitted that she was daughter of late Sangat Ram and she being class-I heir of the deceased was entitled to the property in dispute which has devolved upon her. Suit of the plaintiff was not maintainable. It was further admitted that the suit property was allotted to one Pala Ram and late Sangat Ram had purchased the said house from Pala Ram on general power of attorney on 07.12.1992 and ever since late Sangat Ram possessed the said house. It was further submitted that the mother of the defendant was the legally wedded wife of late Sangat Ram. She was the daughter from her first marriage. Late Sangat Ram adopted the defendant as a daguther after marrying her mother. The remaining averments of the plaint was denied and prayer for dismissal of the suit was made. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled for possession of the suit property and for mense profits as alleged and on the grounds taken in the plaint?OPP. R.S.A.No.607 of 2010 (O&M) 3 2. Whether the plaintiff has no locus standi to file the suit?OPD. 3. Whether the present suit is not maintainable?OPD 4. Whether the suit has not been sufficiently stamped?OPD. 5. Whether the suit is hit by principle of re- judicata?OPD. 6. Whether this court has no territorial jurisdiction to try the present suit?OPD. 7. Relief.” After considering the evidence and hearing learned counsel for the parties, the suit of the plaintiff-respondent was decreed and the defendant was directed to hand over the possession to the plaintiff. Feeling aggrieved from the judgment and decree of the trial Court, the defendant filed an appeal which was also dismissed by the lower Appellate Court vide impugned judgment and decree dated 22.12.2009. While dismissing the appeal, the lower Appellate Court on re-appraisal of evidence found that appellant had failed to establish that she was adopted daughter of late Sangat Ram and therefore, she had no right to claim the property in dispute and plaintiff-respondent being the nearest legal heir of late Sangat Ram (being his sister) was entitled to maintain the suit for possession. The plea of resjudicata raised by the appellant was also rejected as the earlier suit for permanent injunction restraining the appellant from entering into the house, was dismissed as withdrawn on 27.04.2004 and it was held that the subject matter and cause of action of the earlier suit is entirely different. Still not satisfied, the defendant has filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel appearing on behalf of the appellant has vehemently argued that the suit filed by the respondent was not maintainable, in view of the fact that the appellant was the adopted R.S.A.No.607 of 2010 (O&M) 4 daughter of deceased-Sangat Ram. There was ample evidence on record to prove the same in the form of Ex.D5-School leaving certificate and other documents. However, the courts below have ignored the aforesaid evidence which has resulted into perversity in the findings of the courts below. Learned counsel for the appellant has further submitted that in fact, appellant had placed on record of this appeal by way of application to adduce additional evidence sufficient evidence to prove the factum of adoption of the appellant by late Sangat Ram and the aforesaid evidence is necessary to be adduced on record for the just decision of the case and therefore, appellant is entitled to lead additional evidence. However, the aforesaid prayer of the appellant has been rejected by my separate order noticing the fact that the additional evidence sought to be produced was already to the knowledge of the appellant from the very beginning and in fact, the appellant was a party to the aforesaid documents which are now sought to be produced and therefore, no ground was made out to allow the appellant to lead the additional evidence at this stage. Learned counsel for the appellant has further argued that appellant is in long standing possession and has a right to protect her possession against the plaintiff- respondent who is not the true owner as admitted in the house in question was allotted to one Pala Ram and on the basis of the agreement to sell and the same cannot be said to have been transferred in the name of late Sangat Ram and thus, on the basis of the aforesaid arguments the following substantial question of law arises for the consideration of this Court: 1. Whether the first appellate court is not bound as the final court of fact to record its findings on the basis of evidence? 2. Whether the present suit of the plaintiff is not barred under Order 2, Rule 2 CPC as it has come on record that when the plaintiff had filed her earlier suit for permanent injunction then the defendant appellant R.S.A.No.607 of 2010 (O&M) 5 was said to be in possession of that house and first suit has been withdrawn without seeking any permission from the court to file any fresh suit on the same cause of action and further the plaintiff had a cause of action to file suit for possession earlier when she had specifically said that the defendant- appellant had put locks on the house in dispute. 3. Whether the adoption of the appellant is not proved by conduct of Sangat Ram expressed by him in official work? 4. Whether a suit for possession could be maintained on the agreement to sell which is void by law? I have heard the learned counsel for the appellant. Both the courts below on appreciation of evidence have recorded a finding of fact that the appellant has failed to prove her adoption by Sangat Ram- deceased. There is no evidence in support of the case of the appellant except a school leaving certificate Ex.D-5 which was also not proved in accordance with law. Learned counsel for the appellant has very fairly submitted that in the absence of the additional evidence sought to be produced, the appellant cannot succeed in challenging the finding of the courts below on this issue. Thus, no fault can be found in the findings of the courts below on the issue of adoption and therefore, question no.1 and 3 do not arise in this appeal. The argument of the learned counsel with regard to the maintainability of the suit for possession by the plaintiff-respondent on the ground that Sangat Ram-deceased had not perfected his entitle on the basis of agreement to sell and therefore, plaintiff-respondent cannot be said to be owner of the suit property and thus, appellant was entitled to protect her possession against all but true owner, is also without any force. The lower Appellate Court has noticed the fact that both the parties to the appeal have admitted that late Sangat Ram was the lawful owner and in R.S.A.No.607 of 2010 (O&M) 6 possession of the suit property. Learned counsel for the appellant could not dispute the fact that even the defendant-appellant had pleaded that the suit property was purchased by late Sangat Ram from Pala Ram on the basis of general power of attorney dated 07.12.1992 and ever since then late Sangat Ram possessed the said house. In view of the aforesaid pleadings and the admission, appellant now cannot raised the aforesaid argument that late Sangat Ram had not perfected his title over the suit property and thus, the fourth question of law as proposed by the learned counsel for the appellant also does not arise. Lastly, it may be seen that there is no dispute that the earlier suit was filed by the plaintiff-respondent only seeking a permanent injunction against the appellant when the plaintiff was stopped from entering the house of her brother late Sangat Ram and her rights were threatened. Moreover, the aforesaid suit was not decided on merits. Still further, it is settled law that the plea of resjudicata has to be proved by specifically pleading and proving the same. In spite of the fact that an issue was framed in this regard and the onus to prove this issue was upon the appellant, appellant has not placed on record any evidence to prove the aforesaid plea. In view of the judgments of the Hon'ble Supreme Court Panchayat Vs. Ujjagar Singh 2001 (1) CCC 1 SC and Chinnappa Vs. Corporation, 2005(1) CCC 382, the argument of the appellant is without any force. Thus, the substantial question raised by the learned counsel for the appellant on the issue of resjudicata also does not arise in the present appeal. No other point was raised. No substantial question of law arises in this appeal. Thus, I find no merit in this appeal. Dismissed. February 10, 2010 (RAKESH KUMAR GARG) Seema-II Judge R.S.A.No.607 of 2010 (O&M) 7