Regular Second Appeal No.3476 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3476 of 2007 Date of decision: 07.08.2009 Amrit Lal, son of Arjan Dass, r/o Partap Gate, Kaithal. ..... Appellant. Versus Sudesh Kumar son of Amar Nath, r/o Kaithal, district Kaithal. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Rajesh Chaudhary, , Advocate for the appellant. None for the respondent. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 17.09.2005, rendered by the Court of Additional Civil Judge Regular Second Appeal No.3476 of 2007 2 (Senior Division), Kaithal, vide which it decreed the suit of the plaintiff for permanent injunction and the judgment and decree dated 06.10.2007, rendered by the Court of District Judge, Kaithal, vide which it dismissed the appeal. 2. The brief facts of the case, are that the plaintiff claimed that he had been the lessee of a plot measuring 5170 sq. yards, comprising khasra nos.195 and 196, situated at Patti Goddar, within the municipal limits of Kaithal since 1.1.1992. It was stated that the defendant being a stranger, had no right, title or interest therein. It was further stated that the boundary wall of the suit property had fallen in the rains, and when the plaintiff wanted to reconstruct the same, the defendant had started interfering into such construction. It was further stated that the defendant (now appellant) was asked, many a time, not to do so, but to no avail. On his final refusal to desist from his illegal Regular Second Appeal No.3476 of 2007 3 designs, left with no alternative, a suit for permanent injunction, was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that there was no boundary wall of the property on the south-eastern side of khasra nos.195-196. The defendant had raised boundary wall around the land of Ba Pau Shiksha Samiti, Kaithal, in the year 1970 and a gate was also installed in the western side. It was further stated that the earlier suit filed by the plaintiff, with regard to the same property, was dismissed on 19.10.2000, , but the plaintiff did not disclose this fact and, as such, the suit was liable to be dismissed, on this ground alone. The remaining averments, contained in the plaint, were denied being wrong. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- Regular Second Appeal No.3476 of 2007 4 “1- Whether the plaintiff is in possession of the suit land fully detailed in para no.1 of the plaint ?OPP 2- If issue no.1 is proved in affirmative, whether the plaintiff is entitled to injunction sought ? OPP 3- Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 4- Whether the suit is not maintainable ?OPD 5- Relief.” 5. The parties led evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit, as stated above. 6. Feeling aggrieved, an appeal was preferred by the appellant/defendant, which was also dismissed by the Court of Regular Second Appeal No.3476 of 2007 5 District Judge, Kaithal, vide its judgment and decree dated 06.10.2007. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/defendant. 8. I have heard the Counsel for the appellant, and have gone through the documents, on record, carefully. 9. The Counsel for the appellant submitted that in fact, the defendant (now appellant) being the vice President had raised the boundary wall, around the land of Ba Pau Shiksha Samiti, Kaithal. He further submitted that there was no construction on khasra nos. 195 and 196, raised by the plaintiff (now respondent) towards the Eastern-Southern side. He further submitted that the defendant (now appellant) had opened a gate, on the western side in the passage (rasta) in the year 1970 and the same had been in existence since the very beginning. He further submitted that the Courts below, illegally held that the plaintiff was in Regular Second Appeal No.3476 of 2007 6 possession of the property, in dispute, as a lessee of the Haryana Wakf Board and the defendant (now appellant) had got no concern with the same. He further submitted that earlier the plaintiff (now respondent) filed a suit, with respect to the same property, which was dismissed, and, as such, the second suit was not maintainable. He further submitted that the Courts below, illegally decreed the suit and, as such, the same were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of Regular Second Appeal No.3476 of 2007 7 the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. It is evident from the evidence of Ibrahim Khan Clerk in Punjab Wakf Board, (PW-1) that the plaintiff was a lessee of the said Board in respect of the property, in dispute. This property was leased out, in favour of the plaintiff, vide allotment letter Ex.P1. Sudesh Kumar son of Amar Nath, plaintiff, (PW-2), also stated that he had been leased out the property, in dispute, by the Haryana Wakf Board and had Regular Second Appeal No.3476 of 2007 8 been in possession thereof. Baldev Raj son of Ram Lal, (PW-3) also corroborated the statement of both these witnesses. No objection certificate Ex.P2, and receipt Ex.P3 regarding the payment of lease money, were also issued by the Haryana Wakf Board, in favour of the plaintiff, which duly corroborated the tenancy, in his favour. Even the plea taken up by the plaintiff, in the plaint that he was the lessee over the property, in dispute, of the Haryana Wakf Board, was not specifically denied, in the written statement. The Courts below, on proper scrutiny of the evidence of the plaintiff, as also of the defendant, rightly came to the conclusion that the plaintiff was in possession of the property, in dispute, as a lessee, and the defendant had no concern therewith. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. No doubt, an objection was taken by the defendant, that earlier a suit Regular Second Appeal No.3476 of 2007 9 for permanent injunction, was filed by the plaintiff, which was dismissed and, as such, the second suit was not maintainable. It is evident from para no.10 of the judgment of the First Appellate Court, that from Ex.D-3, copy of the order, it was proved that the earlier suit was dismissed in default under Order 9 Rule 3 of the Code of Civil Procedure and, as such, the second suit, on the same cause of action, was not barred, under the provisions of the Code of Civil Procedure. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference by this Court. Regular Second Appeal No.3476 of 2007 10 13. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 14. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) 07.08.2009, Judge dinesh