R.S.A.No.36 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.36 of 2007 Date of Decision : 18.08.2009 Nasib Singh and others ...Appellants Versus Ram Chander and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Pritam Saini, Advocate, for the appellants. Mr. S.M.Sharma, Advocate, for respondent Nos.3 to 5. HEMANT GUPTA, J. (ORAL) The legal heirs of the plaintiff are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the suit for permanent injunction restraining the defendants from interfering in the possession of the plot said to be owned by the plaintiff was dismissed in appeal. It is the case of the plaintiff that the plot shown in green colour in the site plan is ancestral plot of the plaintiff and is being used by the plaintiff for tethering his cattles and also used as Goharas and pathwara. The plaintiff has raised barbed wire on the southern side as well. But the defendants are intending to grab the plot of the plaintiff and to encroach R.S.A.No.36 of 2007 2 upon the Bara of the plaintiff. Thus, he filed the present suit for permanent injunction to prevent such action of the defendants. To support that the disputed plot is the property of the plaintiff, the plaintiff has examined Joginder Singh as PW-1, who is the attesting witness of the compromise between Naurata Ram and the Officers of the Electricity Board, Bachna Ram as PW-2 and himself appeared as PW-3. On the other hand, defendants have examined DW-1 Ram Chander, DW- 2 Ravinder Singh, Ex-Up Sarpanch of the village Majri, DW-3 Pritam Singh, proprietor of the village, whose mother Smt. Tejwant kaur was the Sarpanch, and DW-4 Hans Raj, another inhabitant of the Village. The learned trial Court decreed the suit holding that though the stand of the defendants in the written statement is that there the possession of the defendants is that of owner, but the evidence was led to the effect that it is gali share-aam, which is contrary to the pleadings raised by the defendants. Consequently, the suit was decreed. However, an application for amendment of written statement was filed before the first Appellate Court to plead that the property in dispute is street. Though the said application was declined, but the first Appellate Court returned a finding that earlier the suit filed by the plaintiff was dismissed in default vide order dated 25.11.1999 Ex.D-9. The said suit was against the Gram Panchayat, but the plaintiff has filed another suit reagitating the same issues by omitting Gram Panchayat as defendant in the present suit. The writing Mark-A dated 13.12.1992 was found to be not proved in evidence. After considering the evidence led by the parties, it was found that the plaintiff has failed to prove his exclusive ownership or his R.S.A.No.36 of 2007 3 possession over the suit property. Learned counsel for the appellants has vehemently argued that Mark-A dated 13.12.1992 stands proved from the testimony of Joginder Singh PW-1, the attesting witness of the said writing. Therefore, the first Appellate Court has erred in law in holding that Mark-A is not admissible in evidence. It is also contended that since the threat of encroachment was on behalf of the defendants, therefore, the Gram Panchayat was not a necessary part in the present suit. After hearing the learned counsel for the appellants at some length, I do not find any merit in the arguments raised. Mark-A is a writing in respect of some dispute between the plaintiff and the Electricity Board, wherein the Electricity Board has conceded a writing in favour of the plaintiff. The said writing is not accompanied by any site plan to show that it relates to the property in dispute. The first Appellate Court has found that the original of Mark-A was not produced. As per the stand of the plaintiff, the original is with the Electricity Board. The plaintiff should have summoned the original from the Electricity Board to prove the primary document. In view of the said fact, Mark-A cannot be said to be relevant to determine the controversy between the parties. Earlier the plaintiff has claimed right over the said property against the Gram Panchayat. The said suit was dismissed in default vide order dated 25.11.1999 Ex.D-9, whereas, in the present suit the Gram Panchayat has not been impleaded as a party. Both the Courts have found that the property is a shamlat being a gali share-aam. The plaintiff has failed to prove that it is his exclusive property. The evidence is that the R.S.A.No.36 of 2007 4 property is in fact a gali share-aam. The learned first Appellate Court has appreciated the entire evidence to return a finding that the plaintiff has failed to prove his exclusive ownership or possession over the property in dispute. However, it could not be pointed that any evidence has been misread or not taken into consideration. Findings of fact recorded by the learned first Appellate Court cannot be permitted to be disputed by reappreciation of evidence in second appeal. Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 18.08.2009 (HEMANT GUPTA) Vimal JUDGE