Regular Second Appeal No. 4112 of 2010 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 4112 of 2010(O&M) Date of Decision: December 03, 2010 Usha Rani ---Appellant versus Jagdev Singh ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Vishal Garg, Advocate, for the appellant *** GURDEV SINGH, J. Suit was filed against the present appellant-defendant-Usha Rani by Jagdev Singh, respondent-plaintiff, for possession of the residential house constructed on the plot measuring 116 square yards, situated in Dojjan Street, Nabha, fully detailed in the heading of the plaint and for recovery of mesne profits with effect from 26.4.1999 till the delivery of possession of the house. The suit was decreed by Additional Civil Judge (Sr. Division), Nabha, vide judgment and decree dated 10.11.2008. The defendant preferred first appeal against that judgment and decree but the same was dismissed by Additional District Judge, Patiala, vide judgment Regular Second Appeal No. 4112 of 2010 -2- and decree dated 8.5.2010. The present second appeal has been preferred against those judgments and decrees. Briefly stated, the case of the plaintiff is that he purchased the plot from his own father Kirpal Singh and Tarlochan Singh, husband of the defendant, for ` 29,000/-, vide sale deed dated 24.5.1993. He constructed house on this plot by raising loan of ` 3,00,000/-. He was residing in Delhi and on that account in stead of renting out the house, inducted Tarlochan Singh therein as a licensee for the up keep of the house. Tarlochan Singh died on 26.4.1999, as a result of which the license in his favour stood terminated. After his death, the defendant is in unauthorised and illegal possession of this house. The suit was contested by the defendant. In her written statement, she denied the contentions of the plaintiff and pleaded that the house in dispute was ancestral and coparcenary property in the hands of Kirpal Singh and was the only house owned by the parties. They had been living there since decades. The sale deed put forward by the plaintiff, is forged and fabricated document and is without consideration and legal necessity. In fact, the house was renovated by Kirpal Singh with the help of the money received by him by the sale of the property situated in village Bugga Chobdar and no such money was spent by the plaintiff for the construction of this house. In the replication to the written statement, the plaintiff denied all the contentions raised therein and reiterated his averments made in the plaint. On the pleadings of the parties, following issues were framed Regular Second Appeal No. 4112 of 2010 -3- by the learned Trial Court:- 1. Whether the plaintiff is owner of the house in question?OPP 2. Whether plaintiff purchased this house vide sale deed dated 24.5.93? If so, its effect?OPP 3. Whether the plaintiff is entitled for possession of this house?OPP 4. Whether the plaintiff is entitled for mesne profits regarding this house from defendant on 26.4.99 onwards as alleged?OPP 5. Whether the suit property is ancestral and coparcenary in the hands of Kirpal Singh. If so, its effect?OPD 6. Whether the sale deed dated 24.5.1993 is without consideration and legal necessity and benefit of the estate. If so, its effect?OPD 7. Whether the plaintiff is estopped by his act and conduct to file this suit?OPD 8. Whether the suit is not maintainable in the present form?OPD 9. relief. To succeed in the suit, plaintiff examined himself as PW-1, Manjit Singh, PW-2, Bharat Lal, PW-3, Inder Kumar, PW-4, Amrit Lal, PW-5, Karnail Singh, PW-6, Sanjay Madan, PW-7, Manjit Singh, PW-8, Saurav, PW-9 and Amarjit Singh, PW-10. On the other hand, defendant entered the witness box as DW-4 and examined Shamsher Singh DW-1, Gurmit Singh, DW-2 and Manit Singh, DW-3. After going through the evidence so produced on the record Regular Second Appeal No. 4112 of 2010 -4- and hearing learned counsel for both the sides, learned trial court decided all the issues, except Issue No. 4, in favour of the plaintiff and resultantly decreed his suit for possession, while dismissing the same for the recovery of mesne profits. The first appeal preferred by the defendant was dismissed, as aforesaid. I have heard learned counsel for the defendant. It has been submitted by counsel for the defendant that substantial question of law is involved in the present appeal in view of the fact that the evidence produced by the plaintiff was in total contradiction to his own pleadings and still the findings were recorded by both the lower courts in his favour to the effect that he is the owner of the house in dispute and that the defendant is coming in illegal possession thereof. According to him, those contradictions are; (i)In the plaint he pleaded that it was a plot which was purchased by him from Kirpal Singh and Tarlochan Singh and that thereafter he constructed a house on that plot whereas the evidence produced by him is to the effect that he had purchased the house itself. (ii)In the plaint he pleaded that the defendant is coming in possession of the house in dispute after the death of her husband, Tarlochan Singh and her possession is unauthorised and illegal whereas he made a statement in the Court that the defendant had taken forcible and illegal possession after the death of her husband. He also submitted that the property in dispute was ancestral property in the hands of Kirpal Singh and he is still recorded to be the owner of that property. Therefore, there was no question of the sale thereof by Kirpal Singh and Tarlochan Singh in favour of the plaintiff. Regular Second Appeal No. 4112 of 2010 -5- After minutely examining and scrutinizing the evidence produced by the parties, the findings were recorded by lower courts against the defendant. The contradictions, so pointed out by the counsel for the defendant, cannot be said to be of such a nature that it can be said that the findings recorded by the lower courts are perverse and as such give rise to substantial question of law so as to afford ground to the defendant to file the second appeal. Specific Issue No. 5 was framed as to whether property was ancestral or coparcenary in the hands of Kirpal Singh and on the basis of the evidence produced by the parties, that issue was decided against the defendant. It is not the case of the counsel for the defendant that the said finding is based on misreading of evidence or is perverse. No substantial question of law arises in this appeal and the same is hereby dismissed. (GURDEV SINGH) JUDGE December 03, 2010 PARAMJIT