R.S.A. No.1167 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1167 of 2010(O&M) Date of Decision:26.07.2011 J.N.Mehta ......Appellant Versus Dev Raj Saini and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Kul Bhushan Sharma, Advocate, for the appellant. **** M EHINDER S INGH S ULLAR , J.(oral) As is evident from the record that J.N.Mehta son of R.N.Mehta- appellant-plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit for recovery of damages of `10,000/-, with a consequential relief of permanent injunction, restraining Devi Raj Saini and others-respondent-defendants(for brevity “the defendants”), from interfering in his peaceful possession over the suit property. 2. Having completed all the codal formalities and taking into consideration the entire evidence on record, the trial Court dismissed the suit of the plaintiff and accepted the counter claim filed by defendant No.1 and directed him (plaintiff) to pay a sum of `5,000/- as damages to the defendant, by virtue of impugned judgment and decree dated 24.04.2009. 3. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal. The first Appellate Court dismissed his suit as well as the counter claim of defendant No.1, by means of impugned judgment and decree dated 17.09.2009, which in substance is, as under:- “The plaintiff had come up with a plea that he had purchased 4 marlas of land in Rect. No.11, Killa No.18,19, 20, 16, 25/1, 21 & 22/1 of Khewat R.S.A. No.1167 of 2010(O&M) 2 Khatoni No.2541251. He had also placed on record the copy of Intkal Ex.P4 & Ex.P5. Copy of the jamabandi was not placed on record. The plaintiff had purchased property from Aruna Devi. It is not the case of the plaintiff that any partition had taken place. A share had been purchased. In the sale deed there are no dimensions or boundaries. No site plan was prepared nor tagged with the sale deed Ex.P2. The case of the plaintiff is that the property was shown in the site plan Ex.P1. The plaintiff knew what his case was and what plea had been raised by the defendant and what evidence he was required to lead. The case of the defendant from the very beginning was that the disputed property fell in Khasra No.11, Killa No.23. They had appended some annexures along with written statement but unfortunately the attested copies were not produced on record. That plaintiff knew what case he was to prove. He approached the court with a prayer for appointment of local commissioner. The local commissioner was appointed and he visited the spot and gave his report Ex.R2. No objections were filed by either party. The plaintiff did not summon the local commissioner. Now the argument raised is that the report cannot be read as it had not been proved and the local commissioner had not been examined and the local commissioner did not follow the rules laid down by the Financial Commissioner. The plaintiff cannot be heard raising any objection in appeal. He should have filed objections if he was aggrieved with the report. The conclusion drawn by the local commissioner was that the plot fell in Khasra No.11/23. The plaintiff was to prove that this plot fell in Khasra numbers referred by him. His oral statement and that of his witness does not prove his case. The suit had been filed by the GPA holder and the plaintiff had not stepped into the witness box. The original GPA was not produced at the time of statement of Jag Ram, the GPA holder. The plaintiff is a resident of Faridabad. There is no explanation why he could not enter the witness box. The explanation given by Jag Ram was that the plaintiff had given the plot to him for use therefore there was a need and the document was got prepared. The GPA was executed in January, 1998. The property had been purchased in 1997. The suit had been filed in 2002. A perusal of the statement of the plaintiff shows that he was not aware of important facts. The power of attorney can depose for the principal on matters which are within his knowledge but he cannot depose for the principal in respect of matters for which only the principal can have personal knowledge. In this case, there is no evidence that the plaintiff was ill, infirm, old or incapable R.S.A. No.1167 of 2010(O&M) 3 or had any disability, therefore his absence from the witness box goes against him. He could not stand the test of cross-examination, therefore, did not appear in the witness box. The GPA did not know about the suit filed by Aruna Devi. He did not even know the khasra numbers in which the property fell. It can safely be concluded that the attorney was not aware of the facts and an adverse inference should be drawn against the plaintiff.” 4. Having lost his legal battle in the Courts below, the appellant- plaintiff still did not feel satisfied and preferred the present regular second appeal, challenging the impugned judgments and decrees of the Courts below in this regard. 5. After hearing the learned counsel for the appellant-plaintiff, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 6. Ex facie, the argument of the learned counsel that the Courts below fell in legal error in placing reliance on the report of Local Commissioner, to negative the claim of the plaintiff, is not only devoid of merit but misconceived as well. 7. It is not a matter of dispute that the Local Commissioner was appointed to inspect the spot and to give his report. In pursuance thereof, he submitted his report(Ex.R2) in this respect. The plaintiff did not file any objection to object the report of the Local Commissioner before the trial Court. Once, the plaintiff did not file any objection, or summon the Local Commissioner to confront him with his report(Ex.R2), then he cannot be heard to say at this belated stage that, he(Local Commissioner) did not follow the proper procedure for inspecting the spot. Therefore, the contrary arguments of the learned counsel for the appellant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 8. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff, to assail the findings of the Courts below. All R.S.A. No.1167 of 2010(O&M) 4 the remaining contentions, pertaining to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and dealt with by the Courts below, in this relevant behalf. 9. Moreover, having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the above indicated findings of fact. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-reasoned decision arrived at by the Courts below, in this regard. 10. Neither any question of law, much less substantial, is involved in this regular second appeal, as contemplated under Section 100 CPC, nor any other point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. Therefore, the impugned judgments and decrees of the Courts below deserve to be and are hereby maintained in the obtaining circumstances of the case. 11. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 26, 2011 (MEHINDER SINGH SULLAR) seema JUDGE