R.S.A No. 867 of 1985 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 867 of 1985 Date of decision : November 06, 2008 Karan Singh (dead) through L.Rs ...... Appellant through Mr.Kabir Sarin, Advocate v. Shiv Charan and others, ...... Respondents through Mr.Santosh Sharma, Advocate CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This appeal has been filed by Karan Singh, defendant No.1, since deceased represented through his L.Rs, against the judgment and decree dated 5.3.1985 passed by the learned Additional District Judge (I), Faridabad allowing the appeal of the plaintiffs and holding that even though the plaintiffs could not prove that the property in dispute was their ancestral property, yet perpetual injunction was granted to them restraining the defendants from interfering with their possession. Learned counsel for appellant has urged that the whole case of the plaintiffs was that the suit property was their ancestral property and that was the basis on which they claimed possession. Having found against them as regards the seminal plea of ownership, the learned lower appellate R.S.A No. 867 of 1985 ::2:: Court committed a manifest perversity in holding the plaintiffs to be in possession. He further urged that the report of the Local Commissioner regarding user by the plaintiffs could not be expanded into the fact of exclusive possession, when it was admitted that the site in dispute was an open plot lying between the walled boundaries of the appellant as well as the plaintiffs. He has relied upon two judgments of the Lahore High Court reported as Mohammad Amin Khan and others vs Balanda and another, AIR 1929 Lahore 71, and Nawab Khan vs. Abdulla Khan, AIR 1931 Lahore 489. In my opinion, these two judgments may not be strictly applicable since both of them dealt with the factual situation where ownership of one party was established while the other party based its claim on adverse possession. Here the situation is entirely different because it is the plaintiffs who are seeking the relief of injunction on the basis that the property in dispute is their ancestral property. Learned counsel for the respondents has argued that the finding that the plaintiffs are in exclusive possession is a finding of fact and cannot be interfered with by this Court. In my opinion, this appeal deserves to succeed. It cannot be lost sight of that the whole basis of the claim of the plaintiffs was that they were owners of the property in dispute since the time of their ancestors. No documentary evidence was led to prove this assertion. The mere fact that the Local Commissioner found that their buffaloes were tethered or that their tractor was parked or that they had stored fuel wood in an open space abutting their walled property could not give rise to an irresistible conclusion that their possession was exclusive and, thus, entitle them to injunction against the defendants. The fact that the plea of the defendants R.S.A No. 867 of 1985 ::3:: regarding ownership of the land in dispute has also not been found to be correct would not help the plaintiffs because they had to stand on their own legs. On a conspectus of all the facts and circumstances mentioned above, I hold that the finding regarding exclusive possession of the plaintiffs did not arise from the evidence and pleadings and is an incorrect inference arrived at on the facts proved on record and, thus, its correctness as a legal conclusion to be drawn or not is a question of law open to second appeal. On this point, I am also fortified by a judgment of the Hon'ble Supreme Court in M/S Orient Distributors v. Bank of India Ltd and others, AIR 1979 SC 867 wherein the Hon'ble Supreme Court held as follows :- “4. It is true that on the plea raised by the appellants a question did arise as to whether the use of the main gate abutting Errabalo Chetty Street and the disputed passage giving access to the appellants' tenement on the first floor formed part of the demise granted by the second respondent to them at a time of the creation of tenancy in 1959? But, admittedly, the tenancy had been created orally and there being no document pertaining thereto the question depending upon the inference to be drawn from the facts and surrounding circumstances obtaining at that time. In our view, therefore, the High Court was right in taking the view that the question was not purely a factual one but one relating to the propriety of the legal conclusion that could be drawn on the basis of proved facts .........” (emphasis supplied). R.S.A No. 867 of 1985 ::4:: Consequently, this appeal is allowed, the judgment and decree of the learned lower appellate Court is set aside and the suit, filed by the plaintiffs, is dismissed. No order as to costs. ( AJAY TEWARI ) November 06, 2008. JUDGE `kk' R.S.A No. 867 of 1985 ::5::