Regular Second Appeal No. 3873 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 3873 of 2010 Date of Decision: 8.9.2011 Gurdev Singh ... Appellant Versus Ram Saran and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sarju Puri, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) The present appellant along with Gurcharan Singh, Harbhajan Singh and Mohinder Singh, had instituted a suit for declaration to the effect that they are owners of the site shown in red colour in the site plan attached with the plaint situated in the abadi of village Ram Raipur, Tehsil and District Nawanshahr. They further sought mandatory injunction to the effect that defendant Ram Saran be ordered to restore the site in dispute to the original position after demolishing the construction made by the defendant, as consequential relief, issuance of permanent injunction restraining the defendant from raising further construction at the site in dispute was also prayed for. The suit filed by the plaintiff was dismissed by the trial Court. Aggrieved against the same, they filed an appeal which was also dismissed. Hence, Gurdev Regular Second Appeal No. 3873 of 2010 2 Singh, one of the plaintiffs, has approached this Court by filing the present regular second appeal. In the suit, it was pleaded by the plaintiffs that they were owners of the site as shown in red colour in the site plan attached with the plaint and this land was kept reserved by the plaintiffs for gathering of their families and its members at the time of marriages and deaths and also for prayer to God for the protection of their cattle, after every six months, so that they are saved from natural diseases. It was stated that the defendant being head strong person had forcibly made encroachment over the property of the plaintiffs and had raised construction and thus, issuance of mandatory injunction was sought for removal of construction and permanent injunction thereafter to protect the property. Upon issuance of the notice, the defendant has caused appearance. Preliminary objections regarding maintainability of the suit, claim of the plaintiffs qua the ownership and possession over the suit property, their locus standi were raised. Further preliminary objections regarding non joinder of necessary parties, concealment of material facts and the suit being barred by limitations were also projected. The averments made in the suit were denied by stating that neither the plaintiffs were owners nor were they in possession of the suit property and even the site plan attached with the plaint was incorrect. It was stated that the defendant had inherited the property from Sangat, who had four sons namely Banta, Biru Ram, Nama and Waryam. It was pleaded that the defendant was in possession over the suit property for the last 40 years and the plaintiffs have no concern with the suit Regular Second Appeal No. 3873 of 2010 3 property. It was further averred that the place, which is reserved for prayer to God for protection of the Cattle, is towards northern side of the street and the said place has been marked as “Tharah” and shown in green colour in the site plan of the defendant. No replication was filed by the plaintiffs. The trial Court, after completion of the pleadings, had formulated the issues and the parties to the suit had led their evidence. The trial Court decided issues No.1 to 4 together. The Court relied upon the admission made by appellant- Gurdev Singh as PW.1. He stated that the defendant is in possession of one room and was sleeping there during the night. The Court further held that the compromise deed Ex.P2 relied upon by the plaintiffs has not been proved as there were no signatures of the scribe Major Singh over it. The trial Court further held that it is evident from the cross- examination of PW.1 Gurdev Singh that the plaintiffs were concealing the material facts. The trial Court, thus, concluded as under:- “17...In the plaint, it is only stated that the plaintiffs are the owners of the site in dispute. However, the source or the manner of ownership has neither been stated nor proved by the plaintiffs. The plaintiffs are basically relying upon the compromise (Ex.P2). Firstly, in his cross-examination, he (PW.1) himself has admitted that there are two Ram Sarans in the village and the name of Ram Saran's father was written. However, the father's name is not there. The defendant has specifically denied his signatures on Ex.2 and the plaintiffs have miserably failed to Regular Second Appeal No. 3873 of 2010 4 prove the said compromise. Even otherwise the present suit was filed on 28.11.2000 and the alleged compromise is dated 1.12.2000...” Thus, issues No. 1 to 4 were decided against the plaintiffs and issues No.5 and 6 were decided against the defendant. In view of the decision on issues No.1 to 4, the suit was dismissed. The lower Appellant has also upheld the findings returned by the trial Court. Mr. Sarju Puri, Advocate, appearing for the appellant, during the course of arguments, has failed to dislodge the findings returned by the trial Court. Learned counsel has laid much emphasis on the alleged compromise deed Ex.P2. On the pointed question asked as to how the compromise deed Ex.P2 has been proved, learned counsel was found lacking in his submissions to justify the same. However, learned counsel has submitted that the compromise deed Ex.P2 stands established from the evidence of PW.4/A Darbara Singh, Sarpanch of village Gram Panchayat Ramraipur. The trial Court has doubted the testimony of PW.4/A Darbara Singh, by holding as under:- “18. Further to prove the compromise, PW.4/A Darbara Singh is the only witness. During his cross- examination this witness has stated that the room is in possession of defendant Ram Saran. He further stated that he does not know whether Smadh belongs to the ancestors of the defendant but it can be of the defendant. He further stated that he does not know whether the suit property belongs to the ancestors of the defendant but he has not Regular Second Appeal No. 3873 of 2010 5 specifically denied the same. He further admitted that the suit property belongs to all the persons of the villagers.” The findings of the trial Court are based on appreciation of the evidence and the same have been affirmed by the lower Appellate Court. This Court will not tread on the path of re-appreciation and do re- appraisal of the evidence in the regular second appeal as the view formulated by both the Courts below is one which is possible on the facts and circumstances of the case. Furthermore, the compromise deed Ex.P2 was executed in the year 2000. The substantial questions of law, as contained in paragraph No.13 of the grounds of appeal, are related to facts and in no way constitute any question of law. Learned counsel was asked to formulate the substantial question of law, which warrants interference of this Court. But he has only relied upon execution of the compromise deed Ex.P2 in support of the claim made in the suit. As stated earlier, both the Courts below, by appreciating the evidence, took into consideration the admission made in cross-examination by appellant/plaintiff No.2-Gurdev Singh, who appeared in the witness box as PW.1 and testimony of PW.4/A Darbara Singh, to lend no credence to the compromise deed Ex.P2. Thus, this Court cannot come to the rescue of the present appellant as during the course of arguments, learned counsel for the appellant, has failed to formulate any question of law, much less a substantial one, for consideration of this Court. Hence, the present appeal is dismissed in limine. Regular Second Appeal No. 3873 of 2010 6 Civil Misc. No. 11552-C of 2010 Since the main appeal has been dismissed, no order in this application for condonation of delay is required to be passed. (Kanwaljit Singh Ahluwalia) Judge September 8, 2011 “DK”