R.S.A. No. 4049 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 4049 of 2009 (O&M) Date of decision : 13.7.2010 ... Hardev Singh ................Appellant vs. Amrik Lal and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. B.D. Sharma, Advocate for the appellant ... K.C. Puri, J. This is regular second appeal directed by plaintiff-appellant against the judgment and decree dated 28.1.2009 passed by Sh. Bua Jee Sansi, Additional District Judge, Jalandhar, vide which the appeal preferred by the plaintiff against the judgment and decree dated 25.4.2007 passed by Mrs. Paramjit Kaur, Civil Judge (Junior Division), Jalandhar, was dismissed. Hardev Singh - plaintiff filed a suit for permanent injunction against Amrik Lal and Tarsem Lal with the allegation that Amrik Lal has rented out the premises to the plaintiff on payment of Rs.60/- per month as rent in the year 1980. Defendant No.1 has sold the property to defendant No.2. Defendant No.2 is now trying to dispossess him R.S.A. No. 4049 of 2009 -2- forcibly and methods other than the process of law. The suit was contested by defendant No.2 – Tarsem Lal alone, who has taken the plea that present suit is collusive between the plaintiff and defendant No.1. The plot in question was agreed to be sold by Kailash Rani wife of defendant No.1 to defendant No.2 vide agreement to sell dated 7.2.1989 for a sum of Rs.48,000/-. Rs.8,000/- was paid as earnest money. Kailash Rani resiled from the transaction and ultimately suit for specific performance was filed, which was decreed vide judgment dated 23.10.1997. Defendant No.2 raised further construction on the property. Kailash Rani – wife of defendant No.1 filed a suit for permanent injunction against Tarsem Lal, the contesting defendant and Hardev Singh – plaintiff. That suit was decreed vide judgment dated 3.10.1996. The contesting defendant preferred an appeal, which was accepted by the District Judge, Jalandhar vide judgment dated 8.1.1999 holding the answering defendant No. 2 to be in possession of the suit property. Replication was filed controverting the written statement and reiterating the averments contained in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP. 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has got no locus standi or cause of action to file the present suit? OPD R.S.A. No. 4049 of 2009 -3- 4. Whether the plaintiff has concealed the material facts from the Court? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 6. Relief. Plaintiff examined Karnail Singh s/o Bachan Singh as PW-1 and Balbir Singh as PW-2. Plaintiff appeared as his own witness as PW-3. On the other hand, defendant Tarsem Lal himself appeared as DW-1 and also examined Jaswant Rai as DW-2. Learned trial Court after appraisal of the evidence reached to the conclusion that plaintiff Hardev Singh is not in possession of the suit property and consequently, dismissed the suit of the plaintiff. Feeling dissatisfied with the above said judgment, the plaintiff filed the Ist appeal. That appeal was dismissed by the Additional District Judge, Jalandhar, vide judgment dated 28.1.2009. Still feeling dissatisfied with the judgment dated 28.,1.2009 and 25.4.2007, referred to above, the present regular second appeal has been filed. The appellant in paragraph No. 3 of the grounds of appeal has mentioned that following questions of law have arisen for consideration of this Court:- a) Whether the judgment and decrees passed by the Courts below are valid, just and legal as the proper procedure has not been followed in as much as the trial was made to continue without even framing the issues and the plaintiff appellant was asked to lead evidence R.S.A. No. 4049 of 2009 -4- even without framing issues? b) Whether the judgment and decrees passed by both the Courts below are illegal and perverse and are liable to be set aside being based on mis-reading and non- appreciation of the oral and documentary evidence on the record to show that the plaintiff appellant is in possession over the suit land as a tenant since 1980? c) Whether the tenancy rights of the plaintiff-appellant would be affected by change of ownership? d) Whether defendant No.1 is in his right and capacity to forcibly dispossess the plaintiff-appellant who is a tenant, even after the passing of a judgment and decree of specific performance in his favour? e) Whether both the Courts below have illegally placed reliance on the earlier judgments and decrees Exhibits D-1, D-3 and D-4 as the same are not binding on the plaintiff-appellant as the provisions of Section 10 of the CPC are not applicable in the facts of the present case? f) Whether the Courts below are justified in ignoring the documentary evidence in the shape of the ration card, voter identity card to prove that the plaintiff-appellant is in the possession of the suit property? However, during the course of arguments, learned counsel for the appellant could not point out how the above said questions of law have arisen, much less the substantial question of law. The only dispute to be decided in the present lis is whether the plaintiff is in R.S.A. No. 4049 of 2009 -5- possession of the suit property as tenant. Both the Courts below have given a definite finding that plaintiff is not in possession of the suit property and that his tenancy is not proved. That being the finding of fact, cannot be assailed. One another circumstance, which militate against the case of the plaintiff is the previous suit, which was filed by Kailash Rani against Tarsem Lal and Hardev Singh. Hardev Singh has not contested the said suit and ultimately vide judgment dated 8.1.1999, passed by District Judge, Jalandhar, Tarsem Lal, now defendant has been held to be in possession of the suit property. So, the fact of possession has already been decided between the contesting parties. Amrik Lal has not concern with the suit property. Kailash Rani – owner, was party in the earlier litigation, which culminated into judgment and decree dated 8.1.1999 holding Tarsem Lal in possession. Consequently, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. In view of the above discussion, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 13.7.2010 Judge chugh