Regular Second Appeal No.3396 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CM No. 10525-C of 2009 & Regular Second Appeal No.3396 of 2009 Date of decision: 25.09.2009 Sham Lal s/o Baru Ram,r/o village Jhamba, District Panipat. ..... Appellant. Versus 1. Gram Panchayat, Jhamba, District Panipat through its Sarpanch. 2. The Sarpanch, Gram Panchayat, Jhamba, District Panipat. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Suryakant Gautam, Advocate for the appellant. Sham Sunder, J. CM No. 10525-C of 2009: Application is allowed as prayed for. RSA No. 3396 of 2009 This Regular Second Appeal is directed against the judgment and decree dated 11.02.2009, rendered by the Court of Civil Judge ( Junior Division ), Panipat, vide Regular Second Appeal No.3396 of 2009 2 which it dismissed the suit, filed by the plaintiff/appellant for permanent injunction and the judgment and decree dated 05.05.2009, rendered by the Court of Additional District Judge, Panipat, vide which the appeal was dismissed. 2. The plaintiff/appellant claimed himself that he was owner in possession of the site marked by letters 'ABCDE', being part of khasra no.34, Khatoni no.322 and Khewat No.157/152, situated within the Abadi-deh. It was stated that the boundary wall had been constructed around the property, in dispute. It was further stated that the plaintiff/appellant, was tethering his cattle, in the property, in dispute, and had also placed cow-dung cakes and bitoras therein. It was further stated that the defendants/respondents had no right, title or interest, in the property, in dispute. They were threatening to dispossess the plaintiff therefrom. It was further stated that the defendants/respondents were asked, many a time, not to do so, but to no avail. On their final refusal to desist from their illegal designs, left with no alternative, a suit for permanent injunction, was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable; that the Regular Second Appeal No.3396 of 2009 3 plaintiff had no cause of action to file the suit; that the plaintiff was estopped from filing the suit by his own act and conduct; that the suit was bad for mis-joinder and non-joinder of necessary parties; and that the Civil Court had no jurisdiction to entertain and try the suit. It was stated that the property, in dispute, vests in the Gram Panchayat. It was further stated that the boundary wall around the property, in dispute, had been constructed by defendant no.1. It was further stated that the plaintiff was not in possession of the property, in dispute, which was being used for common purposes of the village. It was further stated that the Gram Panchayat started constructing an old age home and Panchayat Bhawan over the property, in dispute, but the plaintiff started putting hurdles in the progress of the work. It was further stated that the Panchayat, then passed resolution no.3 dated 3.10.2004, and the same was sent to the Sub Divisional Magistrate,Samalkha, for providing necessary police help. It was further stated that when the local administration, provided police help, to the Gram Panchayat, to start the construction work, it passed another resolution no.1 dated 09.11.2004 and the same was sent to the Block Development and Panchayat Officer, Bapoli, as also to the Deputy Commissioner, Panipat, Regular Second Appeal No.3396 of 2009 4 to appoint a Magistrate so that the construction could be raised under his supervision. It was further stated that the State Government and the local administration were providing financial help to the Panchayat, to construct old age home and Panchayat Bhawan over the property, in dispute. It was further stated that since the possession was already with the Gram Panchayat, the question of dispossessing the plaintiff, therefrom, did not at all arise. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues were framed, by the trial Court :- “1- Whether the plaintiff is owner in possession of Ghair shown as letters ABCDE shown as red in the site plan attached as mentioned and described in the head note of the plaint since the time of his forefathers ?OPP 2- In case issue no.1 is decided in favour of the plaintiff, then whether the plaintiff is also entitled to injunction as prayed for?OPP 3- Whether the Court has got no jurisdiction to try and entertain the present suit? OPD Regular Second Appeal No.3396 of 2009 5 4- Whether the suit filed by the plaintiff is not maintainable in the present form?OPD 5- Relief.” 5. The parties led evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial dismissed the suit. 6. Feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was dismissed by the Court of Additional District Judge, Panipat, vide its judgment and decree dated 05.05.2009. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the plaintiff/appellant. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents on record, carefully. 9. The Counsel for the appellant, submitted that, as per the resolution, passed by the Gram Panchayat, it was admitted by it, that the plaintiff/appellant was in possession of the property, in dispute. He further submitted Regular Second Appeal No.3396 of 2009 6 that since the plaintiff was in possession of the property, in dispute, he could not be dispossessed therefrom, except in accordance with the provisions of law. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, is very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the Regular Second Appeal No.3396 of 2009 7 judgments of the Courts below, is confined only to the hearing of substantial questions of law. The plaintiff/appellant, no doubt, claimed that he was owner in possession of the property, in dispute, yet he could not produce any document with regard to his ownership and possession. On the other hand, the plaintiff, during the course of cross-examination, admitted that the property, in dispute, was the shamlat property. It means that the plaintiff/appellant approached the Court with falsehood, claiming the property, in dispute, to be his ownership. Except his statement, that he was the owner in possession of the property, in dispute, no other evidence was produced by him, to prove this factum. The self-serving statement of the plaintiff to prove that he was the owner in possession of the property, in dispute, was rightly discarded by the Courts below. Even otherwise, the claim of the plaintiff/appellant was that he was tethering his cattle in the property, in dispute, and also placed cow-dung cakes and bitoras therein. Such an act on the part of the plaintiff/appellant, if any, did not be establish his conscious possession, in respect of the property, in dispute. On the other hand, it was proved from the evidence, on record, that the property, in dispute, had been left for the common purposes of Regular Second Appeal No.3396 of 2009 8 village. The panchayat was constructing an old-age home and Panchayat Bhawan over the property, in dispute, with the financial help, being provided by the State Government, as also the local administration. The plaintiff, with a view to usurp the property, in dispute, and to create hurdles, in the progressive steps taken by the Gram Panchayat, in the aforesaid direction, filed a suit for permanent injunction. The Courts below were also right, in holding that even if, the possession of the plaintiff over the property, in dispute, was assumed, he could, at the most be said to be a rank of trespasser. A rank of trespasser has no right, to get injunction, against the true owner. 11. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law on the points, do not suffer from any illegality or perversity, warranting the interference of this Court. The judgments and decrees of the Courts below, being legal and valid, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Regular Second Appeal No.3396 of 2009 9 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) September 25,2009, Judge dinesh