IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2533 of 2010 (O&M) Date of decision: 12th July, 2011 Mam Raj and another … Appellants Versus Hari Kishan and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Brijender Kaushik, Advocate for the appellants-applicants. None for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Civil Misc. No.7602-C of 2010 After hearing counsel for the appellants-applicants and for the reasons stated in the application, the same is allowed and delay of 30 days in refiling the appeal is condoned. Civil Misc. No.7603-C of 2010 After hearing counsel for the appellants-applicants and for the reasons stated in the application, the same is allowed and delay of 3 days in filing the appeal is condoned. Regular Second Appeal No.2533 of 2010 Having failed in both the rounds of litigation, the appellants- plaintiffs have come up in the present regular second appeal. Appellants-plaintiffs had instituted a suit for mandatory injunction praying that the respondent-defendant be directed to hand over the possession of the house and land, details and description whereof Regular Second Appeal No.2533 of 2010 (O&M) was given in the plaint. A further prayer was made that mesne profit at the rate of Rs.500/- per month be awarded in favour of appellants- plaintiffs along with interest at the rate of 2 percent per annum. Case, as set out in the plaint, was that the appellants- plaintiffs were joint owners of the property. They along with their father Phool Chand were occupying the house since birth and in the year 1993 due to the ailment of Phool Chand they had to leave the village and shifted to Ambala Cantt for his treatment. It is stated that defendant No.1 was permitted and allowed to use the property as a licencee without any licence fee, as he was ousted by his brothers and was shelterless. On the notice issued in the suit, the respondent-defendant filed a reply and denied the fact that he was inducted as a licencee by the appellants- plaintiffs. He further stated that in the demised premises his forefather was residing and thereafter he is residing there along with his family. It was further stated that the appellants-plaintiffs had left the village about 40 years back. To prove their case, the appellants-plaintiffs examined Babu Ram as PW-1, Surjit Ram as PW-2 and plaintiff Mam Raj himself appeared as PW-3. To counter the evidence led by the appellants- plaintiffs, the respondent-defendant examined Jagjit Singh as DW-1, Raj Kumar as DW-2 and Hari Kishan as DW-3. After having the rival contentions and perusing the evidence on record, the trial Court dismissed the suit with costs. Admittedly, no document was proved on record by the appellants-plaintiffs from which their ownership or possession could be inferred. The Courts below had given credence to the oral testimony of witnesses of the respondent-defendant and the testimony of witnesses examined by the appellants-plaintiffs was discarded. 2 Regular Second Appeal No.2533 of 2010 (O&M) A very precise and loaded finding has been given by the lower appellate Court, which reads as under: “15. I am of the considered view that Appellants have miserably failed to prove on the record that they are owners of the suit property. Appellants have not produced on the record any document in evidence that they are owners of the suit property. Their oral evidence is also not credible that they are owners of the suit property. They have failed to establish as to when they had created the licence. Appellants in the plaint had alleged that Phool Chand was their father. It is admitted that Phool Chand was the grandfather of the Appellants. The case of the Appellants is also that they had shifted to Ambala Cantt in the year 1993. However, it has come on the evidence that Phool Chand had died in the year 1992. I am of the considered view that case of the Appellants is neither here nor there and the Lower Court has rightly found these issues against the Appellants. I affirm the findings of lower Court on these issues.” Both the courts below after appreciating the evidence have given a concurrent finding of fact against the appellants-plaintiffs. This Court in regular second appeal shall refrain to re-appreciate and do re- appraisal of the evidence. No substantial question of law arises in this case which calls for any interference by this Court. Hence, the present appeal is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 12, 2011 rps 3