IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1879 of 2006 Date of Decision : July 27, 2009 Avtar Kaur and another ....Appellants Versus Jasbir Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Parveen Kumar, Advocate T.P.S. MANN, J. Suit filed by the plaintiffs-respondents for permanent injunction and for possession, was decreed by the Civil Judge (Junior Division), Hoshiarpur on 12.6.2002, which judgment and decree was upheld by the District Judge, Hoshiarpur on 23.11.2005 when it dismissed the first appeal filed by the defendants. The defendants are now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. While filing the plaint the plaintiffs pleaded that the suit property was within the Lal Lakir of the village and purchased by one of them, namely, Niranjan Singh from his father Pritam Singh on 18.10.1958. Since then they were in possession of the same. Niranjan Singh had raised construction over it, although portion of it had fallen. R.S.A. No. 1879 of 2006 -2- A hand-pump was also installed in the suit property. Towards the north of the suit property, there was joint property of the plaintiffs and the defendants besides others, situated in Khasra No.1472/1118. Out of that, one Karam wide passage had been left towards its west. The defendants wanted to interfere with the possession of the plaintiffs forcibly and, accordingly, the plaintiffs prayed for a decree for permanent injunction so as to restrain the defendants from raising any construction and interfering in their peaceful possession. They also sought possession of the portion shown in yellow colour in the site plan after removing wall 'GH'. The defendants challenged the correctness of the site plan and asserted that besides the plaintiffs and the defendants there were other co-sharers also in the suit property falling in Khasra No.1472/1118, which fell within the Lal Lakir. The gate and wall in the suit property were set up by the defendants. They denied the execution of the sale deed, especially, when Pritam Singh had no right to execute the same. In between the property in possession of the defendants, there was a Khola belonging to Niranjan Singh. In the revenue record, all the co-sharers were shown as joint owners. The plaintiffs having their share in the same were joint owners and, therefore, not exclusive owners. The only remedy available to them was to apply for partition. Therefore, the suit be dismissed. Both the Courts below held that the suit property was R.S.A. No. 1879 of 2006 -3- ownership of Niranjan Singh-plaintiff and his wife and, therefore, the plaintiffs were entitled to the injunction as prayed for. As portion shown in yellow colour in site plan Ex.P2 was in possession of the defendants, the plaintiffs were also held entitled to possession of the same leaving the defendants free to remove the wall 'GH' and take away the debris of the same. The record summoned from the Courts below has been received and duly perused. Though the plaintiffs had examined PW4 Barjinder Mohan Singh Bedi, Deed Writer to prove sale deed dated 18.10.1958 executed by Pritam Singh transferring the suit property in favour of Niranjan Singh yet his testimony was ruled out for the reason that it was his father, who had scribed the deed and not himself. Moreover, the documents were in Urdu and the witness did not know Urdu nor he had brought the original register wherein scribing of the document was entered. However, the testimonies of PW3 Kundan Singh, Lamberdar, PW5 Bhupinder Singh, brother of the plaintiffs and brother-in-law of defendant No.1, and of plaintiff Niranjan Singh himself, who stepped into the witness box as PW6, were found reliable so as to hold that the suit property had been sold by Pritam Singh in favour of Niranjan Singh on 18.10.1958. Moreover, the sale deed in question was more than 30 years' old document and, thus, was admissible in evidence without its formal proof. The suit property in question was in the shape of a Khola R.S.A. No. 1879 of 2006 -4- and in their written statement which was initially filed, the defendants admitted that it was in the possession of Niranjan Singh whereas in their amended written statement, the defendants did not state so. On the other hand, defendant Avtar Kaur did not herself step into the witness box to establish her case. She remained contented by examining DW1-Sadhu Singh, DW2 Dhanna Singh, DW3 Arjan Khanna, Draftsman, DW4 Harbhajan Singh and DW5 Harpreet Singh-defendant No.2. Though DW1 Sadhu Singh denied selling of the suit property by his father Joginder Singh in favour of Pritam Singh, father of the plaintiffs, yet he admitted that the suit property was in the possession of the plaintiffs. He also did not know if his father sold the suit property in favour of Pritam Singh at his back. DW2 Dhanna Singh deposed regarding the suit property being property of the parties. However, he also admitted his signatures on the compromise dated 14.9.1999 brought about between the parties. DW3 Arjan Khanna only proved site plan Ex.DW3/A. DW4 Harbhajan Singh could not state as to whether Niranjan Singh had purchased the suit property from his father. However, according to him, no body raised objection when construction was made by Niranjan Singh. Harpreet Singh-defendant No.2, while appearing as DW5 only proved the site plan Ex.DW3/B. Thus, there was no sufficient evidence brought on record by the defendants to prove that the suit property was not exclusively owned by plaintiff Niranjan Singh and his wife and, on the other hand, it was joint property of the parties. R.S.A. No. 1879 of 2006 -5- The concurrent findings of facts recorded by the Courts below were based upon correct and accurate appreciation of the material evidence available on the file. Resultantly, these findings cannot be said to be either perverse or suffering from any illegality or infirmity. Therefore, they cannot be upset and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as formulated by learned counsel for the appellants, do not arise for determination. The appeal is without any merit and is, therefore, dismissed in limine. ( T.P.S. MANN ) July 27, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO