R.S.A.No.1904 of 1989 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 1904 of 1989 Date of decision: 26.11.2011. Bhagwant Singh and another ...Appellants Versus Jaswant Gir and others ...Respondents CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA. Present: Mr. N.S.Sidhu, Advocate for the appellants. None for the respondent. ***** G.S.SANDHAWALIA, J (ORAL). The defendants have filed the appeal against the grant of injunction to the plaintiff No.2 passed by the Trial Court on 24th August, 1988 which has been affirmed in appeal on 10th March, 1989 by the Additional District & Session Judge Patiala. The case of the plaintiffs was that the defendants be restrained from interference or causing interference in any manner in the land marked as A.D.E.F. and AB, CD and DA as the plaintiffs were in possession as owner since their ancestors and they have their residence and the Jhuggis of the plaintiff are situated in the land in dispute. The defendants have no right and title over the suit property and are unnecessary interfering with the possession of the plaintiffs. However, on 18.12.1985, plaintiff no.1 got the suit dismissed as compromised whereas case continued regarding interest of plaintiff no.2. The defendants in the written statement pleaded that the suit land was owned and possessed by one Shamsher Singh son of Udai Singh, who had mortgaged the property vide mortgage deed dated R.S.A.No.1904 of 1989 -2- **** 15.7.1982 and had delivered possession to defendant no.2 and defendant no.2 was in continuing possession over the suit land and he was tethering his cattle and his agricultural implements were also lying there. It was further alleged that back side of the house of the plaintiffs was adjoining with the area in question and they wanted to grab the suit land without any concern. After examining the pleadings and the evidence on record, the Trial Court was of the opinion that the plaintiff had succeeded in proving the possession of the site marked ABCD in the site plan Ex. P1 and also placed reliance upon the report of the Local Commissioner. The right of Shamsher Singh to mortgage the property in favour of the defendants was also disbelieved because no title deed or any site plan was shown prior to execution of the mortgage. Sale deeds Ex. D3 and Ex. D4 were discarded as the boundaries mentioned in the sale deed did not tally with the boundaries given in the head note of the plaint. It was also noticed that the boundaries given in the mortgage deed did not tally with the boundaries of the suit land. The discrepancy regarding the construction in the suit land was also noticed which was contradicted by DW-2, who stated that there is no construction. Accordingly, it was held that the plaintiff was in possession though she had not proved any document of title about the suit property but she had proved her possession and, therefore, she is entitled to injunction under issue No.1. The maintainability of the suit was also upheld under issue no.2. Regarding issue no.3 on the joint cause of action it was held that since suit of the plaintiff no.1 had been dismissed as compromised, the said issue become redundant. That the appeal filed by the present appellants before the Lower Appellate Court was also dismissed after the Lower Appellate Court took into consideration the statement of PW-2 Munshi Gir, who was the R.S.A.No.1904 of 1989 -3- **** neighbour of the plaintiff No.2 Smt.Jagiro whereby he deposed that prior to her, her husband and father-in-law was in possession who had in possession since the formation of Pakistan and defendants had nothing to do with the said property. Reliance was also placed upon the report of Local Commissioner Sh. Jagdish Mehta, Advocate who had visited the spot and found that site in dispute was enclosed by barbed wire and there were hutments (jhugis) on the one corner and small pond along with two temporary fire places for cooking meals. The Lower Appellate Court also noticed that Shamsher Singh the alleged mortgagor had not been produced and the contention that Shamsher Singh was owner of plot was also rejected after referring to the sale deeds Ex. D-3 and Ex. D-4 which allegedly showed the possession of plot of Shamsher Singh towards East on the ground that Ramesh Kumar and Sohan Gir who were neighbourers of Shamsher Singh had not been examined as witnesses. Both the Courts have scanned the evidence and gone through the case set up by the parties and come to a concurrent finding that plaintiff no.2-respondent was in possession but was not the owner and thus, entitled for permanent injunction. That the appellants have not been prejudiced in any manner and the issue of title has not been decided by the Courts rather a finding has been recorded that the plaintiff-respondent no.2 is not owner of the property. That no substantial question of law has been formulated and placed on record and from the above facts and circumstances none seems to arise. The Hon'ble Supreme Court in various judgments has held that a substantial question of law is to be formulated and the second appeal has to be heard on the question of law formulated and in the absence of any such substantial question of law, the appeal is not to be entertained and interference in concurrent findings of R.S.A.No.1904 of 1989 -4- **** fact is not justified. Reference can be made to Gurdev Kaur and others Vs. Kaki and others (2007) 1 SCC 546 and Govind Raju-appellant Vs. Maria Man-respondent AIR 2005(SC) 1008. The appeal, thus, calls for no interference in the well reasoned order passed by the Lower Appellate Court whereby the appeal of the defendants has been dismissed. Accordingly, the present appeal is also dismissed with no order as to costs. November 26, 2011 (G.S.SANDHAWALIA) Pka JUDGE R.S.A.No.1904 of 1989 -5- ****