R.S.A. No. 834 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 834 of 2009 (O&M) Date of decision : 20.2.2009 Baldev Singh and another ....Appellants Versus Amar Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Virender Singh Punia, Advocate for the appellants. ..... MAHESH GROVER, J. This is plaintiffs' second appeal who filed a suit alleging that Surender Singh, their father and Smt. Kashmir Kaur, their mother were co-sharers in the land comprised in khewat Nos.78 and 79 measuring 31 kanals 3 marlas. After their death, the mutation of inheritance was sanctioned in their favour as well as in favour of their brothers and sisters. It was pleaded by them that they were in possession of the aforesaid joint land to the extent of their share as per the family settlement where they had constructed their house which was reflected in the site plan with letters ABFG and that they had constructed the boundary wall of their house and had left some open space towards the eastern side which was being used by them for tethering cattle and storing wood etc. and the respondents R.S.A. No. 834 of 2009 (O&M) -2- having no concern with the said land were trying to interfere in their possession. The respondents contested the suit. Respondent No.1 was proceeded against ex-parte. The other respondents pleaded that the land in dispute was not a part and parcel of the house of the appellants and that defendants No.2 and 3 ( Rajja Singh and Gurbakhash Singh) were co-sharers in the land comprised in khewat Nos.78 and 79 and that the appellants and their brothers had already sold the land more than their share and had also executed several sale deeds and agreement to sell in favour of the purchasers and the purchasers had already onstructed their house over the land purchased by them comprised in khewat Nos.78 and 79. The possession of the appellants was denied and it was specifically pleaded that the portion shown towards the eastern side in the site plan is adjacent to the house of Balbir Singh. Balwinder Singh is in possession of Shri Gurnnanak Dharamshala, Mohalla Gurunanakpura, Fatehabad. Both the parties went to trial on the following issues :- 1. Whether the plaintiffs are co-sharers in khewat Nos.78 and 79 and have built a house mark ABFD shown in the site plan situated in Mohalla Gurunanakpura, near Ratia Chungi, in the revenue estate, Fatehabad?OPP 2. If issue No.1 is proved, whether the plaintiffs are entitled to the relief of injunction?OPP 3. Whether the plaintiffs have not come in the court R.S.A. No. 834 of 2009 (O&M) -3- with clean hands?OPD 4. Whether the defendants have constructed a Dharamshala with the consent of defendants No.2 and 3 at the site in question?OPD 5. Whether the suit is not maintainable in the present form as alleged?OPD 6. Whether the plaintiffs are estopped to file the present suit by their own act and conduct?OPD 7. Whether the suit is time barred?OPD 8. Whether the plaintiffs have no cause of action and locus standi to file the present suit?OPD 9. Whether the suit is bad for non-joinder of necessary parties?OPD 10. Relief. Both the Courts below returned a finding on issue No.1 that the land did not belong to Dharamshala. It was also found as a matter of fact that the appellants were not in possession of the suit land which was depicted in the site plan and regarding which they had raised the dispute and further that the disputed land is a part of khewat Nos.78 and 79 and was in possession of the appellants and other co-sharers jointly and that there was no partition inter se between the co-sharers. Aggrieved by the findings recorded by the learned trial Court vide its judgment dated 26.7.2005 and the first Appellate Court vide judgment dated 18.10.2008, the appellants are in second appeal. While assailing the aforesaid findings, learned counsel for R.S.A. No. 834 of 2009 (O&M) -4- the appellants has contended that the case of the defendants/respondents was specifically negatived by the Courts below and it was held that the land did not belong to the Dharamshala. From this, learned counsel for the appellants wanted to infer that their ownership and possession stood proved. I have heard the learned counsel for the appellants and have perused the impugned judgments. It is the settled principle of law, beyond the pale of any controversy, that the appellants have to prove their case. They cannot derive any advantage from the case set up by the defendants/respondents. It were the appellants, who pleaded that they are the owners in possession of the land which was depicted in the site plan, which they have failed to establish by way of any cogent evidence on record. A specific finding has been returned that the disputed land is a part of khewat Nos.78 and 79 which is jointly held by all the co-sharers and no partition having taken place the appellants were rightly denied the injunction regarding the other co- sharers. In any eventuality, these are pure questions of fact which have been determined by the Courts below. No substantial question of law arises for the determination of this Court. The Apex Court has held in numerous judgments that unless the substantial question of law arises for consideration in a regular second appeal the findings of fact cannot be interfered with unless they are shown to be perverse. This view has been expressed in Govindaraju v. Mariamman 2005 (2) S.C.C. 500. R.S.A. No. 834 of 2009 (O&M) -5- Consequently, the appeal being devoid of any merit is dismissed . 20.2.2009 (MAHESH GROVER) JUDGE dss