Regular Second Appeal No.3490 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3490 of 2011 Date of Decision:-29.8.2011 Baldev Singh ...Appellant Versus Amar Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Harinder Kumar Aurora, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) Having kept the law laid down by Hon'ble Apex Court in case Kashmir Singh vs. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 into focus, now the short and significant question, though important that arises for determination is, as to whether any substantial question of law is involved in the instant regular second appeal, so as to invoke the jurisdiction vested in this Court under Section 100 C.P.C or not ? 2. Concisely, the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the present regular second appeal and emanating from the record, are that Amar Singh, Joginder Singh and Rattan Singh sons of Kishan Singh respondent-plaintiffs (for brevity “the plaintiffs”) filed the suit against Baldev Singh son of Bhag Mal appellant-defendant (for short “the defendant”) seeking a decree for possession of the plot, denominated by letters ABCD shown in red colour in the site plan (Ex.P1), situated in village Khudda, Tehsil Dasuya, District Hoshiarpur. 3. The case set up by the plaintiffs, in brief in so far as relevant, was that their predecessors-in-interest were owners of the house shown in yellow colour in the site plan. They gave it to Mehar Ali Marasi on Rayat basis with a Regular Second Appeal No.3490 of 2011 (O&M) -2- specific condition that when he (Mehar Ali Marasi) would cease to occupy, the Rayat property would revert back to them. It was claimed that Mehar Ali Marasi migrated to west Pakistan, during the course of partition of the country in the year 1947 and the property shown in yellow colour reverted back to the father and uncle of the plaintiffs. According to the plaintiffs that in the year 1928-29, Mehar Ali forcibly raised construction over the suit property and blocked the passage, leading towards the lands of their predecessors-in-interest. They filed civil suit, bearing No.1152 of 1929 against Mehar Ali, which was decreed, on the basis of compromise effected between the parties. Thereafter, the possession of the property in dispute was delivered to the father and uncle of plaintiffs in execution application filed before the civil Court. After their death, the plaintiffs became owners of the suit property. Now the defendant, who has no right, title or interest in it, has threatened to forcibly dispossess them from the property in question and raised construction during the pendency of the civil suit. After withdrawing the previous suit, the plaintiffs filed the present suit for a decree of possession. 4. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiffs claimed that they are owners of the disputed property, but the defendant has forcibly took possession of the property in dispute from them, without any legal right. On the basis of aforesaid allegations, the plaintiffs filed the suit seeking a decree for possession against the defendant, in the manner indicated hereinabove. 5. The defendant contested the suit and filed the written statement, inter-alia raising certain preliminary objections of, maintainability of the suit, res judicata, cause of action and locus standi of the plaintiffs. The defendant pleaded that the plaintiffs are neither owners nor in possession of the suit property. In fact, Smt.Tej Kaur daughter of late Gian Singh was its owner and in possession. She put the defendant into its possession. He is claimed to be in possession of the property in dispute for the last about 20 years. It will not be out of place to mention here Regular Second Appeal No.3490 of 2011 (O&M) -3- that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 6. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case. 7. The parties to the lis, produced on record the oral as well as documentary evidence, in order to prove their respective pleaded cases. 8. The trial Court, after taking into consideration the entire evidence brought on record, decreed the suit of the plaintiffs, by virtue of impugned judgment and decree dated 2.9.2004. 9. Aggrieved by the decision of the trial Court, the defendant filed the appeal, which was dismissed as well, by the first appellate Court, by means of impugned judgment and decree dated 16.5.2011. 10. The appellant-defendant still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 11. After hearing the learned counsel for the appellant-defendant, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 12. Ex facie, the argument of learned counsel that since the plaintiffs have failed to prove their ownership and identification of the plot in dispute, so, the Courts below committed a legal mistake in decreeing their suit for possession, lacks merit. 13. As is evident from the record that the plaintiffs have filed the suit on the basis of their ownership and termed the defendant as a trespasser over the plot in dispute. In order to substantiate their claim, they have produced on record copy of judgment (Ex.P3) rendered in civil suit bearing No.1152 of 1929, titled as Regular Second Appeal No.3490 of 2011 (O&M) -4- “Kishan Singh Vs. Mehar Ali” decided on 21.8.1929. The predecessors-in-interest of the plaintiffs got the possession of the disputed property, by way of warrant of possession (Ex.P2). The contention of learned counsel that warrant of possession (Ex.P2) and judgment (Ex.P3) are not duly proved and are fictitious documents, cannot be accepted. The factum of warrant of possession (Ex.P2) and previous judgment (Ex.P3) is pleaded in the plaint, but the defendant has not taken a specific plea in the written statement that the same are forged and fabricated documents. The incidents of fraud have neither been pleaded nor proved by the defendant. In the absence of the same, the mere assertion that the documents are forged and fabricated, ipso facto, is not a ground to ignore the same, which are otherwise proved by the plaintiffs. Warrant of possession (Ex.P2) and judgment (Ex.P3) are the certified copies issued by the Copying Agency and relate to judicial proceedings. Moreover, no evidence, much less, cogent is forthcoming on record to prove that Tej Kaur was its owner and how, when and in what manner, she had handed over its possession to the defendant. 14. Meaning thereby, the Courts below have taken into consideration and appreciated the entire material brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, they have recorded the concurrent findings of fact that plaintiffs are owners of the property in dispute and how, when and in what manner, Tej Kaur had handed over its possession to the defendant is completely lacking. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 15. No other meaningful argument has been raised by the learned Regular Second Appeal No.3490 of 2011 (O&M) -5- counsel for the appellant-defendant to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 16. Sequelly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Supreme Court in Kashmir Singh's case (supra) in the obtaining circumstances of the present case. 17. No other point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendant. 18. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 29.8.2011 Judge AS Whether to be referred to reporter?Yes/No