Regular Second Appeal No.226 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.226 of 2009 Date of Decision:-11.7.2011 Pran Nath and others ...Appellants Versus Chaman Lal and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Vikas Bahl, Advocate for the appellants. Mr.Sandeep Jain, Advocate for the respondents. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and discussed the pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same in this context. However, tersenessly, the facts, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, are that Pran Nath son of Gopal Dass and others appellant-plaintiffs (for brevity “the plaintiffs”) filed the suit seeking a decree for permanent injunction restraining Chaman Lal son of Ram Lal and others respondent-defendants (for short “the defendants”) from obstructing them in raising any construction in their land in dispute measuring 0 Kanal 7 Marlas, comprised in Khasra No.511, situated at village Banga, Distt.Nawanshahar. 2. The case set up by the plaintiffs, in brief in so far as relevant, was that Kesra Devi widow of Labhu Ram was the owner of the plot of abadi measuring 0 kanal 7 marlas of the land in dispute. The plaintiffs have constructed their house in khasra No.511 bearing No.2673 in the municipal record. The defendants were stated to have their residential house on the eastern side of their Regular Second Appeal No.226 of 2009 -2- (plaintiffs) house across the street. It was alleged that the defendants are threatening to dispossess the plaintiffs forcibly from their residential house without any legal right. On the basis of aforesaid allegations, the plaintiffs claimed that they are owners and in possession of the property in dispute and filed the suit for a decree of permanent injunction against the defendants in the manner indicated hereinabove. 3. The defendants contested the suit and filed their written statement, inter-alia pleading that the suit property is a part and parcel of their property and they are in possession of it for the last more than 12 years. They have acquired title to the suit property by way of adverse possession. They took possession of the land in dispute in the year 1970 and possession matured into their ownership by means of adverse possession. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for adjudication:- 1. Whether the plaintiffs are entitled for permanent injunction as prayed for?OPP 2. Whether the suit of the plaintiffs is not maintainable?OPD 3. Whether the plaintiffs have no locus standi to file the present suit ?OPD 4. Whether the suit is not within time ?OPD 5. Whether the plaintiffs have not complied with the provisions of order 7 rule 1 CPC, if so its effect ?OPD 6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct?OPD 7. Whether the suit is not valuable for the court fee as prayed for ?OPD 8. Relief. 6. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. Regular Second Appeal No.226 of 2009 -3- 7. The trial Court, after taking into consideration the entire material, on ultimate analysis of evidence on record and in view of findings on various issues, dismissed the suit of the plaintiffs, by virtue of impugned judgment and decree dated 8.5.2006. 8. Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 22.9.2008. 9. The plaintiffs still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. That is how I am seized of the matter. 10. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the present appeal in this context. 11. Ex facie, the argument of the learned counsel that since the plaintiffs are proved to be the owners and their possession has to be presumed over the suit land, so, the Courts below committed a legal mistake in dismissing their suit, is not only devoid of merit but misplaced as well. 12. As is evident from the record that plaintiffs claimed that as they are owners, therefore, their possession should be presumed over the suit property. On the contrary, according to the defendants, they are in possession of the suit land since 1970 and became its owners by way of adverse possession. Since the plaintiffs have filed the suit for a decree of permanent injunction, so, now the short and significant question, though important that arises for determination in this case, is as to whether the possession of the plaintiffs has to be presumed being owners or the defendants are proved to be in possession of the property in dispute. 13. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative and as the defendants are proved to be in possession of the property in dispute, therefore, the possession Regular Second Appeal No.226 of 2009 -4- of the plaintiffs cannot legally be presumed as urged on their behalf. 14. What is not disputed here is that the plaintiffs are the owners, but they have utterly failed to prove their possession over the property in dispute at the relevant time. The cosmetic contention of learned counsel for the plaintiffs that since DW1 Chaman Lal maintained that he is in possession of the property in dispute, on which, he has installed a Toka machine and planted the trees and also constructed the mangers over it, so, these acts are not sufficient to prove their (defendants) possession, is neither tenable nor the observations of this Court in case Bhan Singh v. Tej Singh 1998 (1) Civil Court Cases 239 (P&H), are at all applicable to the facts of the present case, wherein, the evidence led by the plaintiff was so un-satisfactory that it has to be concluded that by mere user in the shape of throwing rubbish does not establish the possession of the plaintiff, who has come to the Court to claim the injunction and in the absence of any overt act, it was observed that his possession is not proved. Possibly, no one can dispute with regard to the aforesaid observations, but, to my mind, the same would not come to the rescue of the plaintiffs. 15. In the instant case, the plaintiffs filed the suit for a decree of permanent injunction. It was for the plaintiffs to prove their possession at the relevant time of institution of the suit over the property in dispute by leading cogent and convincing evidence on record in this regard and they cannot depend or take the benefit of weaknesses in the evidence of the defendants. The plaintiffs have miserably failed to produce any cogent evidence to prove their possession at the relevant time i.e. on the date of institution of the suit. On the contrary, taking into consideration the admission emitting from the evidence of the plaintiffs itself, the trial Court has recorded the finding of fact that it stands proved on record that the defendants are in possession of the property in dispute at the relevant time. 16. Not only that, the judgment of the trial Court was upheld by the first Appellate Court, by way of impugned judgment dated 22.9.2008, the operative part Regular Second Appeal No.226 of 2009 -5- of which is (para 15) as under:- “In view of the above referred evidence, this Court has no hesitation in upholding the findings of the lower Court to the effect that it is the defendants, who are in possession over the suit property and that they are admittedly in possession for the last 15 years prior to the date when Pran Nath stepped into the witness box, i.e. prior to 28.1.2003. In view of such long continuous possession of the defendants, the plaintiffs would certainly be required to have recourse to law for seeking possession before he can undertake any construction activity upon the suit property. As far as the stand of the defendants that they had become owners by way of adverse possession is concerned, I find that though the defendants have been able to establish their possession over the suit property, but their continuous possession for more than 12 years prior to the date of filing the suit i.e. prior to 21.7.1997, is not duly established. Though, plaintiff Pran Nath while in the witness box has admitted the possession of the defendants over the suit property for the last 15 years prior to 28.1.2003 (date of deposition), but even by the said admission, the possession of the defendants over the suit property can be said to be from 1988 onwards. In other words, the said possession from 1988 onwards up-till date of filing of the suit in 1997 works out to be less than 12 years and as such, the defendants cannot be said to have become the owners by way of adverse possession. In any case, such like continuous possession can only be disturbed by having recourse to law. As such, I do not find any case for grant of permanent injunction in favour of the plaintiff. The findings of the lower Court on issue No.1 do not call for any interference and are accordingly upheld against the plaintiffs and in favour of the defendants.” 17. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having analyzed the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court have recorded the concurrent findings of fact that the defendants are proved to be in possession of the suit property at the relevant time. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless Regular Second Appeal No.226 of 2009 -6- and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 18. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant connection, have already been duly considered and dealt with by the Courts below. 19. Sequelly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 21. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 11.7.2011 Judge AS Whether to be referred to reporter?Yes/No