RSA No. 2282 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2282 of 2008 Date of Decision: 25.08.2009 Gulab Singh s/o Inder Singh, r/o H. No. B-II/783, Mohalla Satnam Nagar, near New Grain Market, Jalandhar. ... Appellant Versus Ranjit Singh s/o Parsan Singh r/o Sant Vihar Colony, Chak Jindan, Post Office Lidhran, Tehsil and District Jalandhar. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.D. Sharma, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 17.12.07, rendered by the Court of Additional District Judge, Jalandhar, vide which, it accepted the appeal of the plaintiff/respondent, against the judgement and decree dated 12.03.07, rendered by the Court of Civil Judge (Junior Division), Jalandhar, dismissing the suit of the plaintiff/respondent. RSA No. 2282 of 2008 2 2. The plaintiff/respondent, claimed himself to be a tenant of defendant/appellant, in the plot, shown in red colour, in the site plan, at a monthly rental of Rs. 1000/-, since November, 2003. It was stated that the defendant/appellant, approached the plaintiff/respondent, to raise construction over the plot, in dispute, as per his convenience. It was agreed, between the parties that, out of the construction expenses, a sum of Rs. 1 lac, would be kept as refundable security, at the time of termination of tenancy, and the same would be adjusted, against the monthly rent, payable by the plaintiff/respondent to the defendant/appellant. The plaintiff/respondent, spent Rs. 1,20,000/-, on the construction, over the plot, in dispute. Rs. 1 lac, was kept, as security, by the defendant/appellant, and Rs. 20,000/-, was to be adjusted, against monthly rent, starting from November, 2003. Later on, the defendant/appellant, required a sum of Rs. 50,000/-, in order to send his son abroad, as a result whereof, the plaintiff/respondent, paid the same, to him (defendant), subject to the adjustment thereof, in the monthly rent. Thereafter, the defendant/appellant, started threatening to dispossess the plaintiff, from the demised premises, except in due course of law, much before the adjustment of Rs. 1,70,000/-. On the evening of 26.04.04, the defendant/appellant, alongwith his muscle- men came to the property, in dispute, and tried to occupy the same, forcibly. On objection, being raised by the plaintiff/respondent, and intervention of the respectables, the aforesaid attempt of the defendant/appellant, was foiled. The defendant/appellant, was many a time asked, not to interfere into the peaceful possession of the RSA No. 2282 of 2008 3 plaintiff/respondent, but to no avail. On his final refusal, to desist from his illegal designs, left with no other alternative, a suit for permanent injunction, was filed. 3. The defendant/appellant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the plaintiff, had no locus-standi, to file the suit. It was stated that the site plan was not correct. It was denied that the plaintiff, has been the tenant of the defendant, in the property, shown in red colour, in the site plan, at a monthly rental of Rs. 1000/-, since November, 2003. It was further denied that initially the property, in dispute, was a plot, which was offered by the defendant, to raise construction thereon, by the plaintiff. It was further denied that any terms of the alleged tenancy were agreed between the parties. It was further denied that any construction expenses, to the tune of Rs. 1 lac, were to be adjusted, in the monthly rent. It was further denied that the plaintiff, had spent Rs. 1,20,000/-, on construction, and the amount of Rs. 20,000/-, was to be adjusted, in the monthly rent w.e.f. November, 2003. It was further denied that an amount of Rs. 50,000/-, was paid by the plaintiff,to the defendant, for sending his son abroad. It was further denied that Rs. 50,000/-, were to be adjusted, against the monthly rent. It was further denied that any security amount, was refundable, to the plaintiff. It was stated that the defendant, moved an application, to the Police, against the plaintiff. It was further stated that the plaintiff, filed the suit, to save himself, from criminal prosecution. It was further stated that the construction, at the RSA No. 2282 of 2008 4 site, was already, in existence. It was further stated that the suit premises, were previously, let out, by the defendant, to Narinder Kumar and Surinder Kumar, who vacated the same, in September, 2003. It was further stated that Narinder Kumar and Surinder Kumar, filed a suit for permanent injunction, against the defendant, which was dismissed, on 29.01.04. It was denied that the plaintiff, was running dairy farm, in the suit property. It was admitted that the defendant moved to Electricity Department, for disconnection of electric connection, in the suit property. It was denied that the defendant, alonwith his muscle-men tried to dispossess the plaintiff, from the suit property forcibly and illegally. It was further stated that the plaintiff being a trespasser could not be granted injunction against the true owner. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues, were struck:- (i) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP (ii) Whether the plaintiff has locus-standi to file the present suit? OPD (iii) Whether the defendant is true owner? OPD (iv) Whether the wrong site plan has been filed? OPD (v) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of RSA No. 2282 of 2008 5 the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/respondent, which was accepted by the Court of Additional District Judge, Jalandhar, vide judgement and decree dated 17.12.07. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. I have heard the Counsel for the defendant/appellant, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellant, submitted that the plaintiff/respondent, was only a trespasser, in the property, in dispute, and the first Appellate Court, was wrong, in granting injunction, in his favour. He further submitted that, even the defendant/appellant, had filed a suit for possession, against the plaintiff/respondent, and, as such, it could not be said, that he was going to dispossess him therefrom, except in accordance with the provisions of law. He further submitted that, even the suit for possession, filed by the defendant/appellant, had already been decreed, though the appeal, against the same, was pending, in first Appellate Court. He further submitted that the judgement and decree of the first Appellate Court, in this case, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the defendant/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) RSA No. 2282 of 2008 6 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 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 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 judgements of the Courts below, is confined only to the hearing of substantial questions of law. The possession of the plaintiff/respondent, since November, 2003, in respect of the property, in dispute, was admitted. The first Appellate Court, was right, in holding, that since the plaintiff was in established possession of the property, in dispute, without deciding his status in respect of the same the property, in dispute, as if such a finding, was recorded, that may affect the merits of the suit for possession, already filed by the defendant/appellant, he was not entitled to the grant of injunction. The first Appellate Court, was also right, in holding that, it could not be said, that even after filing the suit for possession by the defendant/appellant, the plaintiff/respondent, had no apprehension of his dispossession, from the property, in dispute forcibly. In Premji Ratansey Shah Vs. Union of India, 1995(1), Civil Court Cases, 1, Raj Pal Vs. State of Haryana and another, 2006(4), RCR (Civil), 457, and Nirbhai Singh Vs. Rajbir Singh and another, 2008(3) RCR RSA No. 2282 of 2008 7 (Civil), 515, relied upon by the Counsel for the appellant, it was held, that a trespasser, was not entitled to injunction, against the true owner, on the strength of his wrongful possession. In Premji Ratansey Shah's case (supra), the land had already been acquired, and the possession, had already been taken by the Union of India. But, later on, the plaintiff, took possession of a portion thereof. In these circumstances, it was held that the plaintiff, was a trespasser over the land, in dispute, and was not entitled to the injunction prayed for. In Raj Pal's case (supra), it was held by this Court, that the plaintiff, being a trespasser, he was not entitled to the injunction prayed for. In Nirbhai Singh's case (supra), it was also held, that the plaintiff, being a trespasser, in the property, in dispute, he could not be granted injunction prayed for. The first Appellate Court, did not hold that the plaintiff/respondent, was a trespasser, in the property, in dispute. On the other hand, since the plaintiff/respondent, has been in established possession of the property, in dispute, since November, 2003, and a specific threat of forcible dispossession had been attributed by him against the defendant, from the property, in dispute, he could not be denied the relief of injunction. The facts of the aforesaid authorities, being distinguishable, from the facts of the instant case, no help, can be drawn, by the Counsel for the appellant, therefrom. However, in Walter Louis Franklin (dead) through LRs. Vs. George Singh (dead) through LRs, 1997(2), RCR (Civil), 41, (SC), it was held that, a person, who is in established possession of the property, in dispute, is entitled to injunction, against forcible dispossession, even against the RSA No. 2282 of 2008 8 true owner. The status of the plaintiff/respondent, as to whether, he is a trespasser, or otherwise, is to be decided, in the suit for possession, filed against him, by the defendant/appellant. The findings of fact of first Appellate Court, on the aforesaid points, being based, on the correct appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the appellant, thus, being without merit, must fail,and the same stands rejected. The judgement and decree of the first Appellate Court, are liable to be upheld. 11. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. According to the Counsel for the appellant, an appeal, at the instance of the plaintiff/respondent is already pending, against the judgement and decree, passed in the suit, for possession, filed by him, before the first Appellate Court. The first Appellate Court, is directed to expedite the hearing of the appeal. 25.08.2009 (SHAM SUNDER) Amodh JUDGE