Regular Second Appeal No.2670 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2670 of 2011 (O&M) Date of Decision:-13.9.2011 Suraj Bhan & Ors. ...Appellants Versus Bal Ram & Ors. ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Vikram Punia, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) Having kept the law laid down by Hon'ble Apex Court in case Kashmir Singh vs. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 into focus, now the short and significant question, though important that arises for determination is, as to whether any substantial question of law is involved in the instant regular second appeal, so as to invoke the jurisdiction vested in this Court under Section 100 C.P.C or not ? 2. As the Courts below duly recapitulated, 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 the present appeal. However, the conspectus of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Bal Ram and others respondent-plaintiffs (for brevity “the plaintiffs”) filed the suit for a decree of permanent injunction, restraining Jagmal Singh and others defendants (for short “the defendants”) from interfering in their peaceful and exclusive possession over the property in dispute, situated within the abadi deh/Lal Dora of village Gopalpur. inter-alia pleading that they are owners and in possession of the plot in dispute, Regular Second Appeal No.2670 of 2011 (O&M) -2- denominated by letters ABCDEF shown in the site plan (Ex.P1). It was claimed that the plots bearing Nos.347, 347/5 and 347/6 were purchased by Deep Chand, father of plaintiff Nos.1 to 3, Ram Kishan, father of plaintiff Nos.4 to 7 and Chander Singh, plaintiff No.8 from Hoshiar Singh and Balbir Singh, by virtue of registered sale deed dated 1.9.1971 (Ex.P2). 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiffs that they are owners and in possession and the defendants have got no right, title or interest, but they intend to forcibly dispossess them from the disputed property, without any legal right. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of permanent injunction against the defendants, in the manner indicated hereinbefore. 4. As defendant No.1 did not appear to contest the suit despite service, therefore, the ex parte proceedings were ordered against him by the trial Court. However, defendant Nos.2 and 3 filed their written statements, whereas defendant Nos.4 to 6 filed their separate joint written statement, inter-alia raising certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiffs. 5. The case set up by the contesting defendants, in brief in so far as relevant, was that the plaintiffs were only owners of plots bearing Nos.347/5 and 347/6. They are not owners with regard to the remaining portion of the suit property. The contesting defendants claimed that the plots in litigation were allotted to Bharto, during the partition proceedings and they (defendants) are in possession and using it for tethering their cattle and storing fuel wood etc. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 6. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the Regular Second Appeal No.2670 of 2011 (O&M) -3- wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 7. The parties to the lis, produced on record the oral as well as documentary evidence, in order to prove their respective pleaded cases. 8. The trial Court decreed the suit of the plaintiffs, by means of impugned judgment and decree dated 1.5.2010. 9. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, through the medium of impugned judgment and decree dated 29.11.2010. 10. The appellant-defendants No.4 to 6 still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present regular second appeal. 11. After hearing the learned counsel for the appellant-defendants, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 12. Ex-facie, the argument of learned counsel that since the identity of the property in dispute is not established, so, the Ist Appellate Court wrongly dismissed the application for appointment of local commissioner and the Courts below committed a legal mistake in decreeing the suit of the plaintiffs, sans merit. 13. As is evident from the record that as there was no dispute in regard to the identity of the disputed property, therefore, the Ist Appellate Court has rightly dismissed the application for appointment of LC. As indicated earlier, the plaintiffs have claimed their ownership and possession of the suit property on the basis of registered sale deed (Ex.P2). The trial Court, after taking into consideration the entire evidence on record and admission emanating from the evidence of the defendants, has rightly decreed the suit of the plaintiffs. Not only that, the decision of the trial Court was upheld by the Ist Appellate Court, by way of impugned judgment dated 29.11.2010, which, in substance, is (paras 35 to 37) as under:- Regular Second Appeal No.2670 of 2011 (O&M) -4- “35. Much stress was laid by the Ld.Counsel for the appellants that the site plan Ex.P1 cannot be said to be correct as Clerk of an Advocate had prepared the same. No doubt that clerk of an Advocate is not competent to prepare the site plan but when he stated that he had gone at the spot and at the instance of the plaintiffs he had prepared it and this site plan matches with the map of abadi deh of the village Ex.P3 as also from the statements of the witnesses of the defendants, therefore, it is clear that the site plan Ex.P1 cannot be termed as waist paper. Even a layman can some time prepare the site plan by going at the spot and possession taking the measurements etc. 36. The plaintiffs have proved by way of the registered sale deed Ex.P2 that they had purchased the plot no.347. As observed above, all the three material witnesses of the defendants have admitted this fact. The defendants no.2, 4 to 6 alleged their own possession over the disputed area. These defendants have not given any details as to how they came into possession of this area nor there is any cogent evidence led by them in this regard. 37. On the contrary, the defendant no.4 Suraj Bhan and the two other witnesses of the defendants have almost admitted the case of the plaintiffs. The witness of the defendant has also admitted that the plaintiffs have constructed their houses on some portion of plot no.347/5 which is the case of the plaintiffs. The area of 2900 square yards purchased by the fathers of the plaintiffs is also proved from the copy of sale deed Ex.P2.” 14. The learned counsel for the appellant-defendants did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant behalf. 15. 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, they have recorded the above-mentioned concurrent findings of fact. Such 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 Regular Second Appeal No.2670 of 2011 (O&M) -5- such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this respect. 16. No other meaningful argument has been raised by the learned counsel for the appellant-defendants 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 their behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 17. Likewise, 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 and decrees of the Courts below, in view of the law laid down by Hon'ble Supreme Court in Kashmir Singh's case (supra), in the obtaining circumstances of the present case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 19. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 13.9.2011 Judge AS Whether to be referred to reporter?Yes/No