Regular Second Appeal No. 3591 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3591 of 2008 Date of decision : February 17, 2010 Bujjan and others ....Appellants versus Daya Nand ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Jitender Nara, Advocate for the appellants Mr. Kulvir Narwal, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendants are in second appeal having remained unsuccessful in both the courts below. Respondent Daya Nand filed suit for permanent injunction restraining the defendants from interfering in peaceful possession of the plaintiff over the suit property i.e. a house-cum-Gitwar situated in Abadi Deh of village Matanhail. The plaintiff alleged that Dale Ram was owner of the suit property. On his death, plaintiff's father Moji Ram inherited the suit property and after death of Moji Ram, the plaintiff inherited the suit property and is owner in possession thereof. The defendants denied the averments of the plaintiff and Regular Second Appeal No. 3591 of 2008 -2- interalia, pleaded that defendants are in possession of the suit property as owners and the plaintiff is not even resident of village Matanhail. It was also pleaded that the description of the suit property given by the plaintiff is incorrect. Defendants also alleged that Dale Ram had mortgaged the suit property with possession in favour of one Ram Swroop for Rs 1650/- vide mortgage deed dated 17.5.1950 and the said mortgage was not redeemed within limitation period and therefore, Ram Swroop and his legal heirs became owners in possession of the suit property. Learned Civil Judge (Senior Division), Jhajjar vide judgment and decree dated 9.8.2007 decreed the suit of the plaintiff. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Jhajjar vide judgment and decree dated 19.8.2008. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the courts below have not properly appreciated the evidence inasmuch as Ram Swroop with whom property had been mortgaged with possession by Dale Ram further mortgaged it with possession with ancestors of the defendants. The contention cannot be accepted being completely beyond pleadings. No such plea was raised in the written statement. Learned counsel for the appellants next contended that finding of the courts below that plaintiff is in possession of the suit property is erroneous. However, both the courts have appreciated the evidence and come to concurrent finding that the plaintiff is in possession of the suit Regular Second Appeal No. 3591 of 2008 -3- property. Merely because the plaintiff was residing in another village by itself would not be sufficient to reverse the concurrent finding of fact recorded by both the courts below and to held that the plaintiff could not be in possession of the suit property. A person residing in one village can be in possession of property situated in another village or in many other villages. The finding of fact recorded by both the courts below on appreciation of evidence cannot be said to be perverse or illegal so as to give rise to substantial question of law in the instant second appeal. On the other hand, the plea of the defendants that the suit property had been mortgaged by Dale Ram with Ram Swroop would depict that the defendants have no concern with the suit property. For the reasons recorded hereinabove, I find no merit in the instant second appeal. No substantial question of law arises for determination. The appeal is accordingly dismissed. ( L.N. Mittal ) February 17, 2010 Judge 'tiwana'