IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. *** Regular Second Appeal No. 3107 of 2006 Date of decision: 12.2.2008 Surat Singh alias Surtia --- Appellant Versus Hawa Singh and others --- Respondents CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. C.B. Goel, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. A suit for permanent injunction having failed before the trial court and the decree so passed having got the seal of affirmation from the first appellate court, the plaintiff is in second appeal. The plaintiff averred in the suit that he was joint owner in possession of the suit land comprising Ahata No.5, House No. 5, situated within the Abadi deh of village Jatuwas, District Rewari, and fully detailed in para No.1 of the plaint and shown in green colour in the site plan annexed therewith as the same was inherited by him from his forefathers. According to the plaintiff, the defendants were bent upon to take forcible possession of the suit land for which they had no legal right or authority whatsoever. The plaintiff thus, prayed for a decree for permanent injunction restraining the defendants from interfering in his peaceful ownership and possession over the suit land by raising constructions thereon or in any other manner, whatsoever. R.S.A. No. 3107 of 2006 The defendants filed written statement contesting the assertions of the plaintiff. It was stated that the defendants were continuing as owners in possession of the suit land, approximately to the extent of one-half area towards western side, which they had got from their forefather-Uda. The defendants also alleged that there existed their room and tin-shed over the suit land and that the plaintiff or his fore-fathers had no concern whatsoever with the same. The trial court upon appreciation of evidence did not accept the pleas raised by the plaintiff as he failed to prove that he was owner in possession of approximately one-half western portion of the suit land. On the other hand, the case of the defendants that they had already completed their construction on the said portion of the suit land stood proved from the statement of the Local Commissioner, PW-1, who was appointed on the request of the plaintiff. The trial court on the basis of this finding, observed that the plaintiff could not be held entitled to the relief of permanent injunction as prayed for. The suit was dismissed vide judgment and decree dated 24.5.2004. The first appellate court on re-appreciation of documents and the evidence on record, little rolled down in favour of the plaintiff, but to hold ultimately, that he (plaintiff) at the most could claim to be co- sharer only in one-half portion of the property as comprised in Ahata No. 5 House No. 5, but in absence of the disclosure by him of the particulars of the remaining co-shares in the property, his share could not be ascertained at all. As regards possession, it was observed that it was explicit that the plaintiff had not been able to prove that he was in possession over the suit property on the date of filing of the suit and on 2 R.S.A. No. 3107 of 2006 the basis of this; it was held that the plaintiff was not entitled to the relief of injunction against the defendants. Appeal at the instance of the plaintiff was dismissed by the first appellate court vide judgment and decree dated 28.4.2006. I have heard learned counsel for the appellant and perused the record. The trial court after critically examining the entire evidence on record, in particular the unshaken testimony of DW-1 Fateh Singh and DW-2 Ballu Ram had come to the conclusion that the plaintiff had not been able to prove his ownership over the plot in dispute. It was categorically stated by DW-2 that he had been watching the possession and the user of the disputed plot by the defendants since the time he gained adolescence. He stated that the plot in question had fallen to the share of the defendants by inheritance from their forefathers. This witness further stated that defendant No. 3- Leelu Ram had been residing in the said plot whereas the remaining defendants had been using the same as Gitwar and the plaintiff had no concern with the possession or user of the said property. This evidence led on behalf of the defendants remained unrebutted. The observations of the first appellate court in para 7 of its judgment go to the root of the controversy, which read as under: “The plaintiff claims ownership and possession over the entire suit property as a co-sharer by way of inheritance and he asserts the same to be comprised in Ahata No.5 house No.5. To substantiate his claim, he has placed on file Ex. P2, i.e. copy of Khasra Paimash Abadi Moja Jatuwas along 3 R.S.A. No. 3107 of 2006 with its Hindi translation Ex. P-2/T, wherein Nonda s/o Sh. Sehju and Pirana s/o Sh. Rumal are recorded to be owners in possession of Ahata No.5, house No.5. Though, no specific shares of both the above-said owners have been mentioned in the column denoting the ownership, but in these circumstances, the natural inference would be that both of them were owners of the aforesaid property in equal shares, i.e. ½ share each. Ex. P-3 is the pedigree table along with its Hindi Translation Ex.P-3/T, wherein aforesaid Pirana is recorded to be the great grand-father of present plaintiff Surat. In these circumstances, it is explicit that the plaintiff claims his ownership and possession over the suit property on the basis of its inheritance from his above-said ancestor Pirana, but it being so, he cannot claim ownership and possession over the entire property as comprised in Ahata No.5 house No.5 as a co-sharer. Even qua ½ share of his above-named fore-father Pirana, he has failed to disclose the complete details and description of the remaining co-sharers, who must have inherited this ½ share along with him from Pirana because as shown in Ex. P-3/T itself, Pirana had another son named Ruda besides Nathu, i.e. grand-father of the plaintiff and the father of the plaintiff named Shiv Lal had two more brothers namely Harda and Saman and the plaintiff himself has one more brother named Sarjeet as shown in it. In these circumstances, the plaintiff has withheld the details of the other legal heirs of above-said 4 R.S.A. No. 3107 of 2006 Pirana for the reasons best known to him and non- disclosure of the same has not been explained by him at all throughout in his pleading.” The conclusion recorded in para 14 of the judgment of the first appellate court which is relevant and seals the fate of the appellant, reads thus: “From the above discussed evidence, it is explicit that the plaintiff-appellant has not been able to prove his ownership over the suit property, as shown in Ex. PW1/D, i.e. the site plan, as prepared by his own witness, i.e. PW-1, after visiting the spot as Local Commissioner in compliance of the order of the Court and also to prove that it is the same ½ portion of Ahata No.5 house No.5, as claimed to be inherited by him along with other co-sharers from his forefather, Pirana above-named.” On the face of the aforesaid observations of the courts below, no illegality or perversity could be pointed out by the counsel for the appellant to persuade this Court to interfere with the concurrent findings of fact recorded by the courts below. No substantial question of law arises in this appeal for consideration of this Court. In view of the above, there is no merit in the appeal and the same is accordingly dismissed in limine. (AJAY KUMAR MITTAL) February 12, 2008 JUDGE *RKMALIK* 5 R.S.A. No. 3107 of 2006 6