RSA No.3357 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3357 of 2010 (O & M) Date of Decision: 20.01.2011. Ratti Ram and others .....Appellants Versus Gram Panchayat and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vineet Chaudhary, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.9841-C of 2010 Deficiency in Court fee is said to have been made good. The application is, therefore, allowed. CM No.9842-C of 2010 Allowed as prayed for. CM no.9843-C of 2010 Allowed as prayed for. CM No.9844-C of 2010 This is application for condonation of delay of 393 days in refiling the appeal. It is alleged that appellants' counsel shifted his office from Chandigarh to Ambala and some files were misplaced during his shifting, resulting in delay of 393 days in refiling the appeal. Learned counsel for the applicant-appellants states that in fact he had shifted his office from Ambala to Chandigarh and not RSA No.3357 of 2010 (O & M) -2- from Chandigarh to Ambala. Heard. File perused. The ground pleaded in the application is not sufficient to explain the long delay of more than a year. It is not even mentioned in the application as to when the counsel shifted his office from Ambala to Chandigarh. Long delay of more than a year cannot be condoned on such vague, general and specious ground as pleaded in the application. Accordingly, the application is dismissed. Main Appeal. Since application for condonation of delay in refiling the appeal has been dismissed, the appeal is liable to dismissal on this ground. However,even on merits, the appellants cannot succeed. Plaintiffs having failed in both the Courts below, are in second appeal. The plaintiffs alleged that they are in possession of the respective disputed Baras since inception of the village. They store dung-cakes, paddy straw, garbage etc. in the Baras and also tether their cattle there. There is also a grass shed and a pucca latrine, besides trees and hand pump and other articles of the plaintiffs. House of plaintiff No.3 also exists there. Plaintiffs are absolute owners in possession of these Baras. Since jurisdiction of civil Court to determine the question of ownership against Gram Panchayat-defendant No.1 is barred, the suit was being filed on the basis of open, continuous, hostile and uninterpreted possession of RSA No.3357 of 2010 (O & M) -3- the plaintiffs. Even Gram Panchayat cannot dispossess the plaintiffs from the disputed Baras illegally and forcibly without due course of law. However, defendants are bent upon to dispossess the plaintiffs from the suit property illegally and forcibly by raising construction. Defendants have no right to do so. During pendency of the suit, defendants have encroached upon portion of the suit property depicted by letters WXYZ in red colour in the site plan. Accordingly, plaintiffs sought mandatory injunction directing the defendants to remove the said construction and encroachment. Plaintiffs also sought permanent injunction restraining the defendants from interfering in possession of the plaintiffs over the disputed Baras. Defendant No.1 denied the plaint allegations. It was pleaded that plaintiffs are neither owners nor in possession of the suit property. It was denied that plaintiffs are using the suit property for their purposes as alleged by them. In the year 1965, plots were allotted to the residents of the village. Plaintiffs were given plots of 10 marlas each. However, the disputed plots have Nos.31, 32 and 33 which are exclusively owned by Gram Panchayat-defendant No.1 and are reserved for Harijan Chopal. Alleged latrine exists in plot No.31 owned by Gram Panchayat. Plaintiffs are not in possession of the suit property. Defendant No.1 is owner as well as in possession thereof. Various other pleas were also raised. Defendant Nos.2 to 4 were proceeded ex parte. Learned Additional Civil Judge (Senior Division), Ambala City vide judgment and decree dated 13.06.2007 dismissed RSA No.3357 of 2010 (O & M) -4- the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Ambala vide judgement and decree dated 20.04.2009. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiffs' oral evidence is not sufficient to prove that they are either owners or in possession of the suit property. No documentary evidence has been produced by the plaintiffs in support of their version. On the other hand, oral evidence of the plaintiffs stands rebutted by oral evidence of the defendants. Learned counsel for the appellants vehemently contended that Local Commissioner vide his Report Annexure A-1 found articles of the plaintiffs lying at the spot and, therefore, plaintiffs are proved to be in possession of the suit property. The contention cannot be accepted. Firstly, there is nothing in the report of Local Commissioner to depict that articles at the spot belonged to the plaintiffs. Secondly, even if the plaintiffs had placed some articles in the suit property before the visit of the Local Commissioner, it would not amount to possession of the plaintiffs over the suit property. Mere placing of some dung-cakes or paddy straw or fuel wood etc. does not amount to possession of the plaintiffs. On the contrary, the plaintiffs claimed hostile possession. The plaintiffs have not approached Assistant Collector to seek declaration that they are owners of the suit property. The suit has been filed on the basis of hostile possession. However, owner is deemed to be in possession RSA No.3357 of 2010 (O & M) -5- of the vacant land. Since plaintiffs are not owners of the suit land, they cannot be deemed to be in possession thereof, even if it be assumed for the sake of arguments only that they have placed some dung-cakes, fuel wood etc. in the suit land. There is no cogent evidence to depict possession much less established possession of the plaintiffs over the suit property. Existence of latrine in the suit property does not depict that it was constructed by the plaintiffs. On the contrary, some construction has been raised by Gram Panchayat as per version of the plaintiffs themselves. Jasbir Singh, photographer PW-1 stated that there was no construction at the spot. It belies the version of the plaintiffs. Om Prakash PW-2 stated that there is one room in the disputed property and the same was got built by Gram Panchayat- defendant No.1. Jai Parkash PW-3 stated that site plan was prepared two years back. He also admitted that Gram Panchayat had got buit a room in the suit property, although he stated that it was got built before visit of Local Commissioner. Balram Singh PW- 4 stated that disputed Baras are numbered plots. However, no record has been produced by the plaintiffs to depict their possession on suit property. On the other hand, Balram Singh PW-4 admitted that Chopal is in existence at the spot. This admission corroborates the version of defendant No.1. It is thus apparent from plaintiffs' own evidence that they are not in possession of the suit property. Both the Courts below have recorded concurrent finding of fact against the plaintiffs. The said finding is based on appreciation of evidence and is supported by cogent reasons. The RSA No.3357 of 2010 (O & M) -6- said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. On the contrary, lower appellate Court is the final Court of fact. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be lacking any merit and is accordingly dismissed in limine. 20.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE