RSA No.3633 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3633 of 2009 (O&M) Date of decision: 17.2.2010 Jagtar Singh ......Appellant(s) Versus Dial Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Bikramjit Arora, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) CM No.11166-C of 2009 Application is allowed subject to all just exceptions. RSA No.3633 of 2009 This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that he was owner in possession of the suit land with a further relief of mandatory injunction directing the defendant-respondent to execute the Tatimanama in respect of sale deed dated 18.9.1996 was dismissed. In brief, the plaintiff-appellant in his suit has alleged that the respondent had agreed to sell land comprised in Khasra No.1639/2 but at the time of execution of sale deed, the land of Khasra No.1640(4-0) min was written in the sale deed. The respondent was also handed over the possession of Khasra No. 1640(4-0) min and since the execution of the sale deed, the plaintiff is in possession of Khasra No.1639/2(4-0) and it has come to his knowledge now that he was given wrong Khasra number since the plaintiff had purchased and got possession of Khasra No.1639/2 but inadvertently the land of Khasra No.1640 was mentioned in the sale deed. RSA No.3633 of 2009 (O&M) 2 He requested the respondent to prepare Tatimanama but he declined the request. Hence the suit. Upon notice, the respondent contested the suit submitting therein that the plaintiff-appellant was neither the owner nor in possession over the suit land of Khasra No.1639/2(4-0)min West. It was further submitted that the aforesaid Khasra number had already been mortgaged with possession in favour of one Bakhshish Singh son of Tara Singh vide registered mortgage deed dated 28.11.1989. The aforesaid morgagee Bakhshish Singh sold his mortgage rights in favour of Gurnam Kaur wife of Sardara Singh vide writing dated 23.10.1992 and delivered its possession to her who remained in possession till 25.3.1997 when the defendant- respondent got the above mentioned land of Khasra No.1639/2(4-0). However, the respondent admitted that he had executed the sale deed dated 12.7.1996 in respect of Khasra No.1665(2-0) and sale deed No.1881 dated 18.9.1996 in respect of Khasra No.1640(4-0) in favour of the plaintiff-appellant. Remaining averments were denied and dismissal of the suit was prayed. Both the Courts below on appreciation of evidence while dismissing the suit have recorded a finding of fact that the plaintiff had failed to prove his possession over the Khasra No.1639/2(4-0) and there was no evidence that he purchased the suit land bearing Khasra No.1639/2 (4-0) and therefore, he was not entitled to declaration and mandatory injunction as prayed by him. Feeling aggrieved from the aforesaid judgment and decrees of the Courts below, the instant appeal has been filed by the plaintiff. Before this Court while challenging the judgment and decrees of the Courts below, the appellant has submitted that his application under Order 41 Rule 27 CPC filed for adducing additional evidence was not RSA No.3633 of 2009 (O&M) 3 decided by the Lower Appellate Court and on the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial question of law arises in this appeal: “Whether the ld. Court below has committed a grave error by not deciding the application of the appellant under Order XLI Rule 27 CPC before passing the impugned judgment and decree?” From the perusal of the records of the Lower Courts which were called, I find that the argument raised by the appellant is misconceived and based upon wrong facts. The aforesaid application under Order 41 Rule 27 CPC filed by the appellant was dismissed by the Lower Appellate Court vide detailed order dated 28.7.2009, passed separately. The appellant has not raised any grouse before this Court regarding rejection of his prayer for adducing additional evidence by the Lower Appellate Court. In view of the aforesaid, the question of law, as raised by the appellant, does not arise in this appeal. I have also perused the impugned judgment and decrees. There is no material evidence on record on the basis of which any fault can be found with the concurrent finding of fact recorded by the Courts below. Thus, no question of law, much less substantial question of law, arises in this appeal. Dismissed. February 17, 2010 (RAKESH KUMAR GARG) ps JUDGE