Regular Second Appeal No. 3773 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3773 of 2006 Date of decision:31.08.2009 Pursotam alias Pappu son of Tirkha, r/o village Ukhalchana, Tehsil and District Jhajjar. ..... Appellant. Versus 1. Prem Chand s/o Gokal, 2. Karan Singh s/o Gokal, 3. Parkash s/o Gokal, all rs/o village Ukhalchana Tehsil and District Jhajjar. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Sanjeev Kodan, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 08.05.2003, rendered by the Court of Additional Civil Judge (Senior Division),Jhajjar, vide which it decreed the suit of the plaintiffs for permanent injunction and the judgment and decree dated 15.06.2006, rendered by the Court of Additional District Judge, Jhajjar, vide which the appeal was dismissed. 2. The facts, in brief, are that, the plaintiffs/respondents claimed themselves to be the owners in Regular Second Appeal No. 3773 of 2006 -2- possession of plot no.1496 since the time of their fore-fathers. It was stated that the defendant/appellant had no concern whatsoever with the plot, in dispute, but threatened to encroach upon the same. It was further stated that defendant/appellant, was asked many a time, not to do so, but to no avail. Left with no alternative, a suit for permanent injunction, was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement. It was denied that the plaintiffs were the owners in possession of the plot, in dispute, from the time of their fore-fathers. It was stated that he was the owner, in possession, of the plot, in dispute. It was further stated that the defendant tethered his cattle, installed manger etc. in the property, in dispute. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed by the trial Court on 13.01.2000 :- “1- Whether the disputed property is part and parcel of plot no.1496 as per settlement in the year 1879 ? OPP 2- Whether the plaintiffs are owners and in possession of the disputed land as detailed and described in para no.1 of the plaint ?OPP Regular Second Appeal No. 3773 of 2006 -3- 3- Whether the plaintiffs have no locus standi to file the present suit? OPD 4- Whether the suit is not maintainable in the present form ?OPD 5- Whether the plaintiffs are estopped from filing the present suit by their own act and conduct ?OPD 6- Whether the defendant is entitled to special costs u/s 35-A CPC ?OPD 7- Relief.” 5. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court, came to the conclusion, that the plaintiffs were owners in possession, of the plot, in dispute. Accordingly, the suit was decreed. 6. Feeling aggrieved, an appeal was preferred by the appellant/defendant, which was dismissed by the Court of Additional District Judge,Jhajjar, vide its judgment and decree dated 15.06.2006. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/defendant. Regular Second Appeal No. 3773 of 2006 -4- 8. I have heard the Counsel for the appellant, and have gone through the documents on record, carefully. 9. The Counsel for the appellant submitted that sufficient evidence was led by the defendant, to prove his conscious possession over the plot, in dispute, but the same was mis-read and mis-appreciated by the Courts below, resulting into decreeing the suit. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, 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 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 Regular Second Appeal No. 3773 of 2006 -5- 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 judgments of the Courts below, is confined only to the hearing of substantial questions of law. Pedigree table(Ex.P-12), proved on record, showed that the plaintiffs/respondents were the heirs of Sheo Lal, the original owner of the plot, in dispute. Aks-Sijra of the disputed plot, (Ex.P-8), Khasra Girdawari for the year 1879, (Ex.P-9) and Muntkhib Khewats for the year 1879, (Ex.P9 to Ex.P11) also showed the same position. From the jamabandi and the other records, it was established that from 1879 onwards, plot no. 1496, the property, in dispute, was in possession of the fore- fathers of the plaintiffs and after their death they came in possession of the same. Until and unless the plaintiffs were dispossessed from the property, in dispute, in accordance with law, the defendant/appellant, could not come into possession of the same. If a person is shown to be in possession, of a particular property, on a particular date, his possession over the same, is deemed to be continuous until and unless otherwise proved. Krishan Kumar, Advocate,(PW-1), was appointed as a Local-Commissioner, who demarcated the suit property and submitted site plan, (Ex.PW1-A) report, (Ex.PW1-B), and attendance sheet,(Ex.PW1/C). He, in clear- Regular Second Appeal No. 3773 of 2006 -6- cut-terms, stated in his report, that the property in dispute, was being used for placing bitoras, kuraries, manure pits etc. and there was no four-wall around the same. Sunder Lal, Retired Naib Tehsildar,(PW-3), during the course of his statement, stated that on the northern side of plot no.1496, Pursotam, defendant was in possession and little four-wall around the land, in dispute, was there. He further stated that there were Bitoras, Kuraries etc. at the spot. No cogent and convincing evidence was led by the defendant/appellant, as to how he came in actual physical possession over the plot, in dispute. Even if, it is assumed, that he was placing cow-dung or tethering cattle over the property, in dispute, that did not prove his conscious and physical possession, over the same. The defendant also failed to prove that he was the owner of the property, in dispute. The Concurrent findings of fact, recorded by the Courts below, that the plaintiffs were the owners in possession of the property, in dispute, having inherited the same from their fore-fathers; that the defendant had no concern with the same; and that the plaintiffs were entitled to the injunction prayed for, being based on the correct reading and due appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The judgments and decrees of the Regular Second Appeal No. 3773 of 2006 -7- Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed. ( Sham Sunder ) 31.08.2009. Judge dinesh