RSA No.2353 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2353 of 2010 (O & M) Date of Decision:27.08.2010 Kashmir Singh .……Appellant Versus Gram Panchayat ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. K. S. Hissowal, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.10085-C of 2010 Allowed as prayed for. CM No.10086-C of 2010 The application is allowed Annexures P-8 and P-9 are taken on record, subject to all just exceptions. Main Case. Kashmir Singh-plaintiff, having remained unsuccessful in both the Courts below, has filed the instant second appeal. Appellant filed suit against defendant-respondent-Gram Panchayat for permanent injunction alleging that plaintiff's father-in- law Thakar Singh was in cultivating possession over the suit land measuring 42 kanals 4 marlas for more than 40 years. Thakar Singh died about 10 years prior to filing of the suit. Thakar Singh bequeathed his entire estate in favour of plaintiff vide Will dated 13.11.1993. Since after the death of Thakar Singh, the plaintiff is in peaceful possession over the suit land. The plaintiff had earlier filed a suit for declaration, but the same was dismissed. The defendant RSA No.2353 of 2010 (O & M) -2- now threatened to dispossess the plaintiff from the suit land forcibly, without any right to do so. Accordingly, plaintiff sought permanent injunction restraining the defendant from interfering in plaintiff's possession over the suit land and from forcibly dispossessing him therefrom. The defendant inter alia pleaded that jurisdiction of Civil Court is barred by Sections 11 and 13 of the Punjab Village Common Lands (Regulation) Act, 1961. It was also pleaded that defendant- Gram Panchayat is owner of the suit land and, therefore, injunction cannot be granted against the defendant true owner. The suit is also barred by res judicata as earlier suit for declaration with consequential relief of permanent injunction filed by the plaintiff was dismissed. On merits, it was alleged that plaintiff's possession over the suit land is illegal as trespasser and defendant-Gram Panchayat being owner of the suit land is entitled to take possession of the suit land. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Zira vide judgment and decree dated 26.05.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 30.04.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff himself pleaded in the plaint that he had earlier filed suit for declaration and the same was dismissed. The defendant has also pleaded that earlier suit for declaration and RSA No.2353 of 2010 (O & M) -3- permanent injunction filed by the plaintiff, was dismissed. Consequently, the plaintiff has no right to file the instant second suit. Even otherwise, admittedly, as also established on record, defendant is owner of the suit land. Plaintiff has no right to retain possession of the suit land. Moreover, the claim of the plaintiff is based on alleged Will dated 13.11.1993 executed by his father-in-law Thakar Singh in his favour. However, the said Will has not been proved. For this reason as well, the plaintiff cannot succeed. It may be added that vide order dated 29.06.2010, the plaintiff was directed to place on record copies of plaint and judgment of the previous suit, which had been instituted by the plaintiff- appellant against the defendant-respondent. However, in spite of two adjournments including last opportunity for today, the said order has not been complied with. It is thus apparent that the plaintiff- appellant has something to hide from the Court. For this reason as well, adverse presumption arises against the appellant. There is concurrent finding of fact against the appellant by the Courts below after appreciating the evidence. The said finding is based on proper appreciation of evidence and does not warrant interference in second appeal as the same is not shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine being devoid of any merit. 27.08.2010. ( L. N. MITTAL ) A. Kaundal JUDGE