RSA No. 169 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 169 of 2009 Date of Decision: 21.08.2009 1. Parbati Devi widow of Jangir Singh son of Budh Singh (aged 73 years); 2. Gurtej Singh aged 28 years son of Jangir Singh son of Budh Singh; 3. Jagjit Singh aged 26 years son of Jangir Singh son of Budh Singh; 4. Gurjant Singh aged 25 years son of Jangir Singh son of Budh Singh; all r/o village Mehma Sarja, Tehsil and District Bathinda, Punjab. ... Appellants Versus 1. Gurtej Singh son of Puran Singh; 2. Kuldeep Singh son of Gurtej Singh; 3. Jaskaran Singh son of Gurtej Singh; all r/o village Mehma Sarja, Tehsil and District Bathinda. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Harpreet Singh Rakhra, Advocate, for the appellants. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 24.03.08, rendered by the Court of Civil Judge (Junior Division), Bathinda, vide which, it dismissed the suit of the plaintiffs/appellants, and the RSA No. 169 of 2009 2 judgement and decree dated 30.07.08, rendered by the Court of Additional District Judge, Bathinda, vide which, it dismissed the appeal. 2. The plaintiffs/appellants, claimed themselves, to be the owners, in possession of the suit land. It was stated that neither any water course, had been sanctioned, through the land, in dispute, by any competent authority, nor the same had ever existed thereon. Even, the Deputy Collector, Sirhind Canal, Bathinda, vide his order dated 20.04.05, held that, no such 'khal', existed, in the suit land. It was further stated that the defendants, had no right or interest, in the suit land, but with a view to cause loss to the plaintiffs/appellants, they were out and out, to construct a 'khal', through the suit land, forcibly and illegally. The defendants, were many a time asked, not to do so, but to no avail. On their final refusal, to desist from their illegal designs, left with no other alternative, a suit for permanent injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiffs, had no cause of action and locus-standi, to file the suit. It was further pleaded that the suit, was not maintainable, in the present form. It was further pleaded that the Civil Court, had no jurisdiction, to entertain and decide the suit. It was further pleaded that the plaintiffs, had concealed the material facts, from the Court. On merits, it was stated that defendants No. 2 and 3, had purchased land, measuring 4 kanals, 10 marlas, out of the suit land, from the plaintiffs, through sale deed No. 13347 dated 04.02.05. It was further stated that all rights of water course, turn of water, trees etc. qua the land, in dispute, were transferred to the defendants, as is clear from the recitals of the sale deed. It was further stated that, as per the sale deed, the possession of the land purchased, was RSA No. 169 of 2009 3 also delivered to the vendees i.e. towards southern side, comprising khasra No. 115/4/1, 4/2 and 3. It was further stated that when the defendants raised objection, regarding turn of water and khal, it was settled, between the parties, that the same would be provided to the defendants and a writing dated 04.02.05, was also executed in this regard. It was further stated that mutation No 10666, was also sanctioned, on the basis of the said sale deed. It was further stated that there existed a water course, in the land purchased by the defendants, which was being used for irrigating the same. It was further stated that the appeal against the order dated 20.04.05, passed by the Deputy Collector, was still pending. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to permanent injunction as prayed for? OPP (ii) Whether plaintiff has no locus-standi or cause of action? OPD (iii) Whether the suit is false, frivolous and fictitious? OPD (iv) Whether the jurisdiction of Civil Court is barred? OPD (v) Whether the suit is barred by principle of estoppel? OPD (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the plaintiffs/appellants, which was also dismissed by the Court of Additional District Judge, Bathinda, vide judgement and decree dated 30.07.08. RSA No. 169 of 2009 4 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 8. I have heard the Counsel for the plaintiffs/appellants, and have gone through and perused the documents, on record, carefully. 9. The following substantial question of law, arises in his appeal, for the determination of this Court:- Whether the Courts below dismissed the suit illegally, by recording perverse findings that the water course (khal) existed, in the land, purchased by the defendants from the plaintiffs, on account of misreading and misappreciation of evidence? 10. The Counsel for the plaintiffs/appellants, submitted that there was no water channel (khal), in the land sold to the defendants. He further submitted that even, in the sale deed, there was no mention of the water channel (khal), in the land, stated to have been purchased by the defendants/respondents. He further submitted that the Courts below, misread and misappreciated the evidence, to come to the conclusion, that there was water channel (khal), in the land, purchased by the defendants/respondents, and, thus, recorded perverse findings, regarding the existence of the same, and dismissed the suit. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiffs/appellants, 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 RSA No. 169 of 2009 5 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 was 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 judgements of the Courts below, is confined only to the hearing of substantial questions of law. The only question, which fell for decision, before the Courts below was, as to whether, there was a water channel, in the land, measuring 4 kanals 10 marlas, which was purchased by defendants/respondents No. 2 and 3, vide sale deed dated 04.02.05, from the plaintiffs/appellants, or not. It is evident from the judgements of the Courts below, at the time of selling 4 kanals 10 marlas, out of the said land, in favour of defendants/respondents No. 2 and 3, vide the sale deed, referred to above, the appellants, got recorded the recitals, in the same, that rights of turn of water, water course etc., were also transferred by them, in their favour. The parties, were bound by the recitals, contained in the sale deed, as it was a covenant between them. Gurjant Singh, PW3, when stepped into the witness box, admitted the case of the respondents. He also admitted that the appellants, had sold 4 kanals 10 marlas of land, in favour of defendants/respondents No. 2 and 3, vide sale deed dated 04.02.05, copy whereof, is DW3/A. He also admitted that a writing between the parties, D2, was executed, vide which, the appellants, had given right of turn of water, water course etc., to the respondents. The appellants, however, concealed this factum, at the time of filing the suit. The Courts below, were also right, in holding that the plaintiffs/appellants, completely failed to produce any evidence, to the effect, that there was no water channel (khal), in the property, which was sold, in favour of RSA No. 169 of 2009 6 respondents No. 2 and 3. On the other hand, the stand, taken up by them, in the plaint, regarding the non-existence of water channel (khal), in the land sold by them, in favour of respondents No. 2 and 3, was belied by the recitals, contained in the sale deed, and D2 writing, which was executed, between the parties. The Courts below, were, thus, right in coming to the conclusion, that under these circumstances, the plaintiffs/appellants, were not entitled to the injunction prayed for. 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 point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the plaintiffs/appellants, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial question of law, depicted above, is answered against the appellants. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 21.08.2009 (SHAM SUNDER) Amodh JUDGE