R.S.A. No. 3591 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3591 of 2007 Date of Decision: 23.07.2009 Brij Mohan son of Shri Gyasi Ram, r/o village Mohna, Tehsil Ballabgarh, District Faridabad. ... Appellant Versus 1. Parsha son of Sh. Charan Singh; 2. Jite son of Charan Singh; 3. Keshav son of Gurji; all r/o Mohna Tehsil Ballabgarh, District Faridabad. ...Respondents 4. Gyasi Ram son of Sh. Ami Chand; 5. Babu Ram; 6. Chander; sons of Gyasi Ram, r/o village Mohna, Tehsil Ballabgarh, District Faridabad. ...Proforma-Respondents R.S.A. No. 3591 of 2007 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Y.D. Kaushik, Advocate, for the appellant. Mr. Lokesh Sinhal, Advocate, for respondents No. 1 to 3. Respondents No. 4 to 6, are proforma respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 31.01.2001, rendered by the Court of Civil Judge (Junior Division) Faridabad, vide which, it dismissed the suit of the plaintiff/appellant, for mandatory and permanent injunction, and the judgement and decree dated 16.11.2006, rendered by the Court of Additional District Judge, Faridabad, vide which, it dismissed the appeal. 2. Shorn of unnecessary details, the facts, relevant for the decision of this appeal, are that, the plaintiff/appellant, was the owner, in possession of the plot, marked by letters ABCD, shown in the site plan, situated within the abadi deh of village Mohna, Tehsil Ballabgarh, District Faridabad, which was under the Lal Dora, as detailed and described in para No. 1 of the plaint. The plot, in dispute, was the ancestral property of the plaintiff/appellant. It was stated that, prior to the plaintiff/appellant, the plot, in question, was owned and possessed by defendant No. 4 his father. It was further stated that, in accordance with the family settlement, the plot, in question, was given by defendant No. 4, to the plaintiff/appellant. It was further stated that, the plaintiff/appellant, wanted to raise construction, on the plot, in question, in the year 1988, for which loan, from a recognized R.S.A. No. 3591 of 2007 3 bank, was required. An application, was moved by the plaintiff/appellant, in this regard, whereupon, he was asked, to give non-encumbrance certificate, regarding the said land, for which he applied to the Sub Registrar, Balabgarh, who marked the said application, to the concerned Halqa Patwari, and received a report, regarding the ownership, and dues, over the plot, in question, in favour of the plaintiff/appellant. Thereafter, no encumbrance certificate, was issued, to the plaintiff/appellant, on 06.11.1989. It was further stated that, again, in the year 1993, no encumbrance certificate, was required, and consequently the Halqa Patwari, confirmed the possession of the plaintiff/appellant, over the plot, in question, on 16.06.1993. It was further stated that, defendants No. 1 to 3, being the strong headed persons, illegally, and without any right, raised construction on some portion of the plot, shown in the site plan, in red colour, but the plaintiff/appellant, being the poor person, with a view to avoid litigation, made a complaint, to the Police Station, Chhainsa. However, the Police, under the influence, and, at the instance of defendants No. 1 to 3, confined the plaintiff/appellant, in Police Station, illegally and unlawfully. It was further stated that the Police, got the signatures of the plaintiff/appellant, on some blank papers, as also the thumb impressions of his father. The defendants, were many a time asked, not to raise any construction, over the said portion of the land, in dispute, but to no avail. On the final refusal of the defendants, to desist from their nefarious designs, left with no other alternative, a suit for mandatory and permanent injunction, was filed. 3. Defendants No. 1 to 3, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. R.S.A. No. 3591 of 2007 4 It was pleaded that the plaintiff, had no locus standi, to file the present suit. It was further pleaded that, the suit was not maintainable. It was further pleaded that the suit was barred by time. It was further pleaded that, no cause of action accrued to the plaintiff, to file the present suit. It was further pleaded that the plaintiff, was estopped, from filing the present suit, by his own act and conduct. It was further pleaded that the suit was not properly valued for the purposes of Court fee and jurisdiction. It was also pleaded that the suit, was the result of collusion, between the plaintiff and defendant No. 4 to 6, being father and sons. It was denied that the plaintiff/appellant, was the owner, in possession of the property, in dispute. Correctness of the site plan, filed by the plaintiff/appellant, alongwith plaint, was challenged by defendants No. 1 to 3, claiming that the same, had no nexus, with the site. It was stated that the plaintiff, was not at all familiar with the measurement of boundaries of the property, in dispute, and, thus, with deliberate and malafide intention, filed the wrong site plan. It was further stated that the suit property, was the ancestral property of defendants No. 1 to 3, and they were the owners, in possession thereof, shown by letters AHBCGDE, in the site plan, and the plaintiff, was an absolute stranger, to the suit property. It was further stated that out of the property, shown in the site plan, defendants No. 1 and 2, were the owners, in possession of the portion, marked by letters HBCG, which had been used by them, for tethering their cattle, and for storing fodder etc., whereas, the remaining portion of the property, in dispute, was owned and possessed by defendant No. 3. It was further stated that, in the property shown by letters AHGD, in the site plan, in red colour, a shop, and two rooms, have been constructed and some open space was left. This portion was under the occupancy of R.S.A. No. 3591 of 2007 5 Sh. Chander son of Sh. Gyasi, as a licencee, from the month of January, 1994, for a period of 11 months. It was denied that, any family settlement, ever arrived at, between the parties. It was further stated that, neither the plaintiff, nor defendant No. 4, was the owner, in possession of the suit property. It was further stated that, the story of non-encumbrance certificate, was merely the result of conspiracy, among the plaintiff and the Halqa Patwari, and certain other agents. It was further stated that, no record, was maintained, in respect of the issuance of non-encumbrance certificate, to the plaintiff, by the Halqa Patwari, which did not bear any authenticity, and was also not binding upon defendants No. 1 to 3. It was further stated that, whatever construction was raised, on the suit property, was well within the rights of defendants No. 1 to 3, and any allegation, made by the plaintiff, in this regard, was false and frivolous. It was further stated that, even the claim of the plaintiff, over the suit property, was found to be malafide, and not genuine, and that was why, he (plaintiff) was confined by the Police, under apprehension of breach of peace. It was further stated that, the claim of the plaintiff, over the suit property, was imaginary, concocted, fictitious, and fabricated, with an ulterior motive to grab the same, from the hands of defendants No. 1 to 3. It was further stated that the suit of the plaintiff, be dismissed, with special compensatory cost, under Section 35-A of the Code of Civil Procedure. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff is owner in possession of the plot marked by letters ABCD, situated within the Abadi Deh of village Mohna, Tehsil Ballabgarh? OPP ii) Whether the plaintiff has no locus standi to R.S.A. No. 3591 of 2007 6 file the present suit? OPD iii) Whether the plaintiff has no cause of action to file the present suit? OPD iv) Whether the suit of the plaintiff is not maintainable? OPD v) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD vi) Whether the suit of the plaintiff is time barred? OPD vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff, for mandatory and permanent injunction. 6 Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of Additional District Judge, Faridabad, vide judgement and decree dated 16.11.2006. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 9. The Counsel for the plaintiff/appellant, submitted that, the plaintiff/appellant, led sufficient evidence, to prove that, he was the owner, in possession of plot No. 577, but the Courts below, were wrong, in coming to the contrary conclusion. He further submitted that the Courts below, were also, wrong, in coming to the conclusion, that the suit for mandatory injunction, was not maintainable, but, on the other hand, the suit for possession, should have been filed. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be R.S.A. No. 3591 of 2007 7 set aside. 10. On the other hand, the Counsel for the respondents, submitted that, no evidence, was led, that the plaintiff/appellant, was the owner, in possession of the property, in dispute. He further submitted that, as per the admission of the plaintiff/appellant, the defendants/respondents constructed boundary wall, over the property, in question, around 8-10 years earlier, to the filing of the suit. He further submitted that, under these circumstances, the suit for mandatory injunction, was not maintainable, but, on the other hand, only a suit for possession, was maintainable. He further submitted that the Courts below, were right, in dismissing the suit of the plaintiff/appellant. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, 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 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 judgements of the Courts below, is confined R.S.A. No. 3591 of 2007 8 only to the hearing of substantial questions of law. The plaintiff/appellant, claimed ownership, in respect of the complete plot, originally bearing No. 577. It is evident that during re-measurement, this plot, was renumbered, and was bifurcated into two plots, bearing Nos. 614 and 615. No evidence regarding ownership was produced by the plaintiff. Brij Mohan, plaintiff/appellant, when appeared, as PW1, in his cross-examination, in clear-cut terms stated, that the land, in dispute, had been left by his grand- father, and great grand-father, and the respondents, had snatched the same, from them, forcibly, around 8-10 years earlier, to the filing of the suit. He further stated that, they had constructed boundary wall, around 8-10 years earlier, to the filing of the suit. Reliance was placed on the report of the Halqa Patwari. The Halqa Patwari, was, however, not examined. In view of the admission of the plaintiff/appellant, during the course of his cross- examination, that he was not, in possession of the property, in dispute, and the same was taken by the defendants/respondents, 8-10 years earlier, to the filing of the suit, any report of Halqa Patwari, was of no consequence. Thus, the suit for possession, should have been filed, by the plaintiff/appellant, instead of a suit for mandatory injunction. The concurrent findings of fact, recorded by the Courts below, that the plaintiff/appellant, failed to prove his ownership, and possession of the property, which was according to him snatched by the defendants/respondents, around 8-10 years, before the filing of the suit; and that the plaintiff/appellant, was not entitled to the permanent injunction, as also for mandatory injunction, as only, a suit for possession, by way of removal of the construction, raised by the defendants/respondents, could be filed, being based, on the correct appreciation of evidence, and law, on the point, suffer from no illegality, or R.S.A. No. 3591 of 2007 9 perversity, and warrant no interference. The submission of the Counsel for the plaintiff/appellant, being without merit, must fail, and same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 23.07.2009 (SHAM SUNDER) Amodh JUDGE