Regular Second Appeal No. 2397 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 2397 of 2011 Date of Decision: 20.7.2011 Kewal Ram …Appellant Versus Des Raj …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Saurabh Garg, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) The present regular second appeal has been instituted by the defendant to the suit. The plaintiff/respondent filed a suit for possession of the property measuring 6 marlas out of land measuring 11 marlas, which was wrongly depicted in the revenue record as 8 marlas. The details and description of the property in dispute has been given in head note of the plaint. It was pleaded by the plaintiff/respondent that he is a co-sharer along with other co-sharers of the land measuring 11 marlas and he had constructed a cattle shed (an animal yard) over the suit property, which was shown in the site plan, attached with the suit, as ABCD. A definite stand has been taken by the plaintiff/respondent that on 15.2.2008, the defendant, at his back, had forcibly taken possession of the suit property and he being the stranger for the same can have no claim over the same. It was further averred that various requests made to the defendant to vacate the suit property proved futile. Hence, he was having no other remedy except to file the suit. The plaintiff had prayed that decree for possession of the suit property be granted in his Regular Second Appeal No. 2397 of 2011 2 favour and furthermore permanent injunction be issued and the present appellant/defendant be restrained from raising any sort of construction over the suit property. Upon notice, the appellant/defendant caused appearance and filed a written statement. He took a definite stand that on 15.11.1998, the plaintiff/respondent had already sold 6 marlas of land out of the khasra number wherein the suit property is situated at the rate of ` 14,500 per marla and received a sum of ` 87,000 as the entire sale consideration, in cash, in the presence of Joginder Pal and Teerath Ram. It is further stated that thereafter the appellant/defendant had constructed a boundary wall, sarkanda shed khurli and installed a hand pump and iron gate over the said property. It was further stated that electric meter has also been installed in the suit property. The plaintiff/respondent has filed replication. After conclusion of the pleadings, the trial Court had drawn the following issues:- “1. Whether plaintiff is entitled to possession and injunction regarding the suit property? OPP 2. Whether suit property was orally sold by plaintiff to defendant for ` 87,000 in 1998 with possession? OPD 3. Whether suit of plaintiff is hit by estoppels? OPD 4. Whether suit of plaintiff is bad for non joinder of other co-sharers? OPD 5. Whether plaintiff has not approached this Regular Second Appeal No. 2397 of 2011 3 Court with clean hands and is guilty of suppressing true and material facts from the Court? OPD 6. Relief”. The plaintiff/respondent himself appeared as PW.1 and reiterated as to what was stated in the plaint and also proved site plan Ex.P2. The appellant/defendant examined Joginder Pal as DW.1, who had tendered into evidence his affidavit but he had not stepped into the witness box for his cross-examination. The defendant himself appeared as DW.3 and proved site plan Ex.D1 and electricity bills Ex.D2 to Ex.D16. He has also tendered into evidence a receipt dated 3.4.2002, which was assigned as Mark “D”. Issue No.1 was decided in favour of the plaintiff and against the defendant. Under this issue, the trial Court, vide its judgment dated 28.10.2010, held that the plaintiff/respondent had a nominal share in the property and he was not competent to alienate 6 marlas of land as he had no power of attorney from other co-sharers to do so. The trial Court further held that under the Registration Act, 1908, the sale deed was required to be registered. No registered document has been brought on record by the appellant/defendant wherefrom transfer of property could be inferred. The trial Court found the testimonies of defendant as DW.3 and DW.1 Joginder Pal were not worthy of credence. The Court also took into consideration the electricity bills Ex.D2 to Ex.D16 and held that a perusal of these bills do not reflect that electric meter has been installed at the property in dispute. Taking totality of circumstances into consideration, the trial Court held that the plaintiff's evidence aspire Regular Second Appeal No. 2397 of 2011 4 confidence and the evidence led by the defendants was not trustworthy. Thus, the trial Court held as under:- “18...So, from the above said discussion, it is clear that although defendant had stated that he had purchased the property from plaintiff, but he had failed to prove this fact and on the other hand, plaintiff had proved the fact that he or the other co- sharers had not sold the suit property to defendant. So, when the plaintiff and other co-sharers had not sold the property and plaintiff along with others are owners of suit property, then they are entitled to possession of the same. So, onus to prove issue No.1 was on plaintiff and plaintiff proved the same. Hence, issue No.1 is decided in favour of plaintiff and against defendant...” The trial Court further held that the appellant/defendant has failed to prove issue No.2 and the same was decided in favour of the plaintiff. Issues No.3 to 5 were also decided against the defendant and in favour of the plaintiff. Thus, the trial Court decreed the suit and directed the defendant to handover possession of the suit property to the plaintiff/respondent within a period of two months from the date of receipt of a certified copy of the judgment and decree. The findings given by the trial Court were affirmed by the lower Appellate Court, vide its judgment and decree dated 29.4.2011. Mr. Saurabh Garg, Advocate, appearing for the appellant/defendant has submitted that the electricity bills Ex.D2 to Regular Second Appeal No. 2397 of 2011 5 Ex.D16 were the material documents and the same have not been taken into consideration by the trial Court. Learned counsel has further submitted that stand of the plaintiff that he was dispossessed on 15.2.2008 is belied by the assertion of the appellant/defendant as he has stated in categoric terms that he was in possession of the suit property as on 15.11.1998. However, on pointedly asked, learned counsel for the appellant has failed to show any document wherefrom it can be inferred that the defendant is in possession of the suit property on 15.11.1998. Learned counsel has laid much emphasis on the electricity bills Ex.D2 to Ex.D16, a perusal whereof nowhere states that the electric meter was installed in the suit property. Learned counsel has read the cross-examination of the appellant/defendant, wherein he admitted that near the suit property he had purchased the house of one Sarwan Kumar where the electric meter has been installed. Therefore, both the Courts below have rightly held that the appellant/defendant has failed to prove that the electricity bills Ex.D2 to Ex.D16 pertain to the suit property. Furthermore, in the regular second appeal, this Court shall refrain from re-appreciating and re-appraising the evidence to dislodge the concurrent findings of fact returned against the appellant/defendant. Learned counsel for the appellant has failed to point out any substantial question of law which could warrant interference of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge July 20, 2011 “DK”