Regular Second Appeal No.2526 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2526 of 2011 (O&M) Date of Decision:-22.7.2011 Goverdhan Dhar ...Appellant Versus Naresh Kumar and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Satbir Singh, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) Concisely, the facts, which require to be noticed for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, are that Goverdhan Dhar son of Parma Nand appellant-plaintiff (for brevity “the plaintiff”) filed the suit for a decree of permanent injunction, restraining Naresh Kumar and Romesh Kumar sons of Anant Ram respondent-defendants (for short “the defendants”) from forcibly demolishing the wall on the northern side of his court-yard, denominated by letters AB in the site plan, inter-alia pleading that he purchased his houses along with the water tank as well as the indicated wall and lane from his vendors, by virtue of registered sale deeds dated 28.2.1994 and 21.12.1995 (Ex.P1 and Ex.P2). Thus, he is owner and in possession of the disputed portion, but the defendants intend to forcibly demolish the water tank and the indicated wall. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of permanent injunction against the defendants, in the manner described hereinabove. 2. The defendants contested the suit and filed their written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, Regular Second Appeal No.2526 of 2011 (O&M) -2- concealment of material facts, estoppel, cause of action and locus standi of the plaintiff. The case set up by the defendants, in brief in so far as relevant, was that since the vendors of the plaintiff were not owners of the water tank, lane and wall, in dispute, so, they could not transfer the better title to the plaintiff. The indicated sale deeds executed in favour of plaintiff were stated to be illegal, null, void and result of fraud. They have denied the ownership and possession of plaintiff over the disputed portion. 3. The defendants have also filed a counter claim, in which, it was alleged that plaintiff has encroached upon some area of the street, by constructing a projection latrine and water tank in the lane, depicted by letters ABCDEF shown in red colour in the site plan. Thus, a decree for mandatory injunction was sought by the defendants in their counter claim, directing the plaintiff to remove the encroachment mentioned therein. According to the defendants that they have purchased their house from Smt. Balbir Kaur wife of Harbans Singh for a consideration of ` 32000/-, vide valid registered sale deed dated 25.8.1994. The plaintiff was stated to have illegally encroached upon the portion of the lane/street. 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 plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the plaintiff is entitled for a decree for permanent injunction, restraining the defendants from demolishing the wall on the northern side of the lane AB as shown in red ink in the site plan?OPP 2. Whether the plaintiff has suppressed material facts from this Court and is not entitled for discretionary relief of injunction?OPD 3. Whether mere suit for permanent injunction is not maintainable in the present form?OPD 4. Relief. Regular Second Appeal No.2526 of 2011 (O&M) -3- Following additional issues were framed on 22.2.1999, 14.5.1999 & 13.10.2004 :- 4) Whether defendants are entitled for counter claim in the form of a decree for mandatory injunction, directing the plaintiff to remove encroachments from points A.B.C.D.E.F. as shown in the site plan?OPD 3A) Whether the defendants are entitled for decree for mandatory injunction directing the plaintiff to remove the encroachment at points A.B.C.D.E. and F in the street in dispute?OPD 4-B) Whether counter claim of defendants is within limitation?OP Counter Claimants. 5. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 6. The trial Court, after taking into consideration the entire material on record, partly decreed the suit of the plaintiff and restrained the defendants to demolish the wall on the northern side of the street. The trial Court has also decreed the counter claim and passed the decree of mandatory injunction in favour of defendants, directing the plaintiff to remove the encroachment made by him as shown in the site plan (Ex.D1), by virtue of impugned judgment and decree dated 10.10.2005. 7. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 25.2.2011. 8. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. 9. After hearing the learned counsel for the appellant, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 10. As is evident from the record that plaintiff claimed the ownership and possession over the wall, and water tank in the lane/street in question, which were stated to be part of his house. On the contrary, the defendants have stoutly denied the same and maintained that plaintiff has encroached upon the portion of Regular Second Appeal No.2526 of 2011 (O&M) -4- the street, denominated by letters ABCDEF shown in red colour in the site plan (Ex.D1) in the manner stated herein-above. 11. Having completed all the codal formalities and on ultimate analysis of the evidence on record, the trial court recorded a finding of fact that plaintiff has miserably failed to prove that the disputed portion of the street/lane etc. is a part of his house, rather he himself has encroached upon the portion of the street and directed him (plaintiff) to remove the encroachment made by him over the portion of the street marked by letters ABCDEF. 12. Not only that, the decision of the trial Court was upheld by the first Appellate Court, by way of impugned judgment dated 25.2.2011, the operative part of which is (para 12) as under:- “The dispute with regard to ownership of the parties in respect of the house purchased by them vide sale deeds dated 28.2.1994, 21.12.1995 and 25.8.1994 is not in issue in the present appeal. The issue is with regard to six feet wide street existing between house of the parties. The appellant claims that he purchased the street by virtue of sale deed dated 28.2.1994 and 21.12.1995 alongwith the house and before purchase, water tank was already in existence in the street. The respondent claimed otherwise that vendors of the plaintiff were not the owners of the lane and they as such were not competent to sell the street. In order to prove the said fact, defendants have relied upon the site plan Ex.D8, compromise Ex.D9 and decree Ex.D14, copy of judgment Ex.D13 passed on 11.9.1963 in suit titled as Lala Rattan Chand and others Vs. Khushi Ram. Perusal of same reveals that earlier suit was filed with suit no.138/1963 titled as 'Lala Rattan Chand Vs. Khushi Ram' for declaration. In the said suit, compromise Ex.D9 was arrived at and site plan Ex.D8 was prepared and the judgment Ex.D13 was passed on the basis of said compromise. The decree for declaration was passed in terms of compromise. The different portions were given to the parties, those were marked with English letters. Between the portions six feet wide street was left that was also later on shown in the Aks shajra Ex.D16 with khasra no.1348 on one side of the street. The appellant claims to have purchased the suit property bearing khasra no.1348 from Kharaiti Lal vide sale deed dated 28.2.1994. He further claims to have purchased house no.29/12 forming part of khasra Regular Second Appeal No.2526 of 2011 (O&M) -5- no.1348 by virtue of sale deed dated 21.12.1995. The said Kharaiti Lal in the sale deed dated 28.2.1994 Ex.P1 has recited the street on the western side while giving description of the property. However, in the last lines of the sale deed, he has given recital that there is constructed water tank in the street which is his ownership. Apparently, Kharaiti Lal has disclosed that water tank is his ownership that was constructed in the street. It is not the street that was recited by Kharaiti Lal as his ownership. Similar recital is given in the sale deed Ex.P2 which is dated 21.12.1995. Thus, even the vendors of the plaintiff did not sell the street to the plaintiff. They only sold water tank that was constructed in the street. The vendors of the plaintiff were not entitled to construct any water tank in the street and they were also not competent to sell the water tank. The action on the part of vendors of the appellant/plaintiff is illegal and that is not liable to be perpetuated on the sole claim of the plaintiff that water tank was already in existence before purchase of house by him.” 13. 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 scanned the admissible evidence in relation to the pleadings of the parties, both the courts below have recorded the above-mentioned concurrent findings of fact. 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 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 appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 14. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the Courts below. 15. In this manner, the entire matter revolves around the re-appreciation Regular Second Appeal No.2526 of 2011 (O&M) -6- 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. 16 No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 17. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 22.7.2011 Judge AS Whether to be referred to reporter?Yes/No