RSA No.3058 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3058 of 2008 Date of decision August 19, 2009 Ram Asra .....APPELLANT VERSUS Dalip Singh and another .....RESPONDENTS CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Mr P.K.Gupta, Advocate T.P.S.MANN, J. Suit filed by the appellant for declaration that he was owner of the abadi bara mentioned as 'ABCD' in the rough site plan, for its possession, for declaring the sale deed dated 27.9.1999 executed by Dalip Singh, defendant-respondent, in favour of Balihar Singh, defendant- respondent, was illegal, null and void, and for permanent injunction so as to restrain the defendants from making any type of construction in the site in question, was dismissed by learned Civil Judge (Jr division), Mohali on 10.10.2007, which judgement and decree was upheld by learned Additional District Judge, Mohali on 8.4.2008 in the first appeal filed by the appellant. Aggrieved of the same, the appellant is now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure. RSA No.3058 of 2008 -2- According to the plaintiff-appellant, the suit land was ancestral and coparcenary property in which he had the right since birth. The property mentioned as 'FBCE' came in his share, while the property mentioned as 'FBHG' came in the share of Mewa Singh and Piara Singh, whereas Joginder Singh, etc. sons of Shyam Singh came to own property mentioned as 'HIJC'. The plaintiff alongwith his son was challaned under Section 302 of the Indian Penal Code for committing murder of Shyam Singh and due to that enmity, the deceased's son Balihar Singh-defendant No.2 got the sale deed executed in his favour from Dalip Singh-defendant No.1 on 27.9.1999, which was illegal, null and void, having no effect on the proprietary rights of the plaintiff. On the basis of the said sale deed, the defendants had taken forcible possession of the site 'ABCD' belonging to the plaintiff, though they had no right or title to the same. The suit was opposed by the defendants by filing a joint written statement, wherein they denied that the suit property was ancestral and the plaintiff had any share in it, rather the suit property was owned and possessed by Dalip Singh-defendant, who had been using it for preparing cow dung cakes, tethering of cattle, goat, etc. and for keeping manure heap. The said defendant sold the suit property to Balihar Singh, defendant vide registered sale deed dated 27.9.1999 and also delivered the possession. After the sale, defendant Balihar Singh had been using it and had even planted a couple of trees there. There was demarcation between the property in the suit land and the property of the plaintiff in the shape of a boundary wall with green plants. The ancestral property of the plaintiff and the defendants and his brother was far away from the interior of the village abadi. The defendants admitted involvement of the plaintiff in the murder RSA No.3058 of 2008 -3- case and stated that he was convicted by the Court of Sessions. It was also pleaded that earlier Avtar Singh, son of the plaintiff, had filed a similar suit against the present defendants, wherein he claimed to be owner of the suit property. The Local Commissioner appointed by the Court visited the spot and submitted the report mentioning therein that the suit property was in possession of Dalip Singh-defendant No.1. In view of the same, the son of the plaintiff withdrew his suit. It was during pendency of the said suit that the plaintiff filed the present suit, which was, therefore, not maintainable. The defendants, accordingly, prayed for dismissal of the suit. At the outset, learned counsel for the appellant submitted that on 2.2.2001, learned trial Court had framed three issues. On 10.4.2007, two additional issues were framed, which were numbered as 1-A and 2-A. On 7.9.2007, an application under Order XIV Rule 5 CPC was submitted by the plaintiff-appellant before the learned trial Court for framing of three additional issues so as to arrive at a just decision in the suit. The said application was entertained by the learned trial Court and notice issued to the defendants. However, the said application was never decided by the learned trial Court, instead the said Court proceeded ahead to dismiss the suit itself. Records of the case were requisitioned. The same have been received. A perusal of the interim order dated 7.9.2007 would show that an application was filed by the plaintiff for framing of additional issues. The defendants were asked to submit their reply. On the next date of hearing, reply was filed. Ultimately, on 10.10.2007, learned trial Court considered and disposed of the application under Order XIV Rule 5 CPC by holding that the proposed issues stood covered under the issues already framed and, RSA No.3058 of 2008 -4- therefore, no ground was made out for framing of additional issues, as claimed by the plaintiff. Accordingly, the application under Order XIV Rule 5 CPC was dismissed by the learned trial Court vide order dated 10.10.2007, which order is reproduced hereunder: “This order of mine will dispose of an application under order XIV rule 5 CPC moved by the plaintiff for framing of additional issues. 2. The plaintiff/applicant has averred that the following issues have not been framed and, therefore, they may be framed as additional issues as they are necessary for adjudication of the matter in hand: 1. Whether the land detailed in site plan Ex.P/1 is ancestral land of plaintiff and defendant No.2? 2. Whether the land shown as ABCD forms the part of land shown in the site plan Ex.P/1? 3. Whether defendant No.1 Dalip Singh or his father had any title to the land shown as ABCD in Ex.P/1? 3. On notice, the defendants/respondents filed reply averring that the issues sought to be framed by the plaintiffs are not required as issues No.1 and 2 are already covered under issues No.1, 2 and 1-A and issue No.3 is also not required to be framed as it is the only plaintiff to prove his title over the property in order to get possession. 4. I have heard the learned counsel for the parties and have also gone through the file carefully. 5. The proposed issues No.1, 2 and 3 are already covered under issues already framed on 2.2.2001 and on 10.4.2007. Moreover, the evidence has been led by both the parties and the application has been moved at the stage of rebuttal and arguments. Both the parties know their case and have led the evidence. As the RSA No.3058 of 2008 -5- proposed issues are already covered, therefore, I do not find any ground to frame additional issues, as alleged by the applicant/plaintiff, hence the application in hand stands dismissed. Pronounced. Sd/- 10.10.2007. (SONIA), CIVILJUDGE(JR.DIVISION) SAS NAGAR, MOHALI.” In view of the above, the stand taken on behalf of the appellant is against the records. According to the plaintiff, the suit property was ancestral in nature. However, he failed to place on record any document from which it could be made out that the suit property was ancestral in nature. Mere oral testimony of the plaintiff and his witnesses would not take place of legal evidence required to show the ancestral nature of the suit property. The plaintiff had admitted that earlier his son had filed a similar suit against the defendants but he withdrew the said suit on 17.10.2000 without seeking permission of the Court to file a fresh suit on the same cause of action. As mentioned above, the Local Commissioner appointed in the suit filed by the son of the plaintiff had submitted the report that the suit property was in possession of Dalip Singh-defendant No.1. The concurrent findings of facts arrived at by the learned Courts below were based on proper analysis of the evidence on record. These findings are not open to challenge in a second appeal, which is maintainable only on substantial question of law and not otherwise. These findings also do not suffer from any perversity, illegality or infirmity. The various substantial questions of law, as framed by the appellant do not arise RSA No.3058 of 2008 -6- for determination, moreso when the application filed by him before the learned trial Court for framing of additional issues had been specifically declined on 10.10.2007. Also, there was neither any mis-reading nor mis- appreciation of the evidence brought on the record. Resultantly, there is no merit in the appeal and, accordingly, it is dismissed in limine. (T.P.S.MANN) August 19, 2009 JUDGE Pds