Regular Second Appeal No. 594 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 594 of 2009. (O&M) Date of Decision: 19.2.2009 *** Gurbux Singh & Ors. .. Appellants VS. Bhagwant Singh .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. R.S. Chahal, Advocate for the appellants. *** ARVIND KUMAR, J. After having lost concurrently before two Courts below, the defendant-appellants have come up in this Regular Second Appeal and have laid challenge to the judgments and decrees passed by the Courts below. The brief facts of the case are that the plaintiff-respondent filed suit for permanent injunction for restraining the defendants from interfering in his possession over the properties marked ABCD measuring 100' X 70' and another property shown with letters EFGH measuring 90' X 40'. It was his case that he inherited the suit properties after the death of his father Jagat Singh along with his mother and two brothers and a sister to the extent of 1/4th share each. Subsequently, he purchased 1/4th share of his mother vide registered sale-deed dated 11.5.1992, taking his total to 1/2 share in the suit properties. According to the plaintiff, the defendants who are strangers to the suit properties are interfering in his possession on the basis of some forged documents. On the other hand, the stand of the defendants was that the property shown with letters ABCD was received by defendant No.1 in an exchange from Jagat Singh on 11.1.1973, for which mutation was also sanctioned on 4.4.1973 whereas the property mentioned at mark EFGH is under their Regular Second Appeal No. 594 of 2009 2 exclusive ownership and thus, the plaintiff has no right therein. After contest, the learned Trial Court disbelieved the assertion made by the defendants and finding the plaintiff as owner in possession of the suit properties to the extent of 1/2 share, decreed the suit and restrained the defendants from interfering in his possession and further restrained them from cutting the trees standing thereupon and from raising any sort of construction on it. The appeal preferred by the defendants has been dismissed, leading to the institution of the present regular second appeal. I have heard learned counsel for the appellants and have gone through the paper-book carefully. It emerges out from the records that there is no denial to the fact that the suit properties originally were the ownership of Jagat Singh, the father of the plaintiff. The execution of sale-deed by Gurcharan Kaur to the extent of her share in favour of the plaintiff is also not in dispute. The plaintiff has also not disputed the factum of oral exchange dated 11.1.1973 between Jagat Singh through his power of attorney Bhagwant Singh and defendant No.1. According to him, the suit property ABCD was not the subject matter of the said exchange and it was other property which was exchanged during the same. Both the Courts below while finding that the exchange Ex.DW1/A was entered between the parties in respect of properties comprised in khasra Nos. 194 and 225 whereas the suit properties were not having any khasra numbers and falling within the “Lal Lakir” and that the boundaries of the property mentioned in the exchange-deed were also not found tallying with the property ABCD, have concurrently held that the plea of the defendants of their having received the property ABCD in oral exchange is incorrect and the property ABCD was not the subject matter of said exchange. Even except his own bald statement as DW5, which too does not inspire any confidence since defendant Gurbux Singh admitted in so many words that he neither knew nor was aware about the properties mentioned as ABCD and EFGH, nothing worth was produced by the defendants to substantiate their aforesaid pleas. Although the appellants claimed that they are exclusive owners of the property EFGH and have also mortgaged the same in lieu of loan taken for raising the construction thereupon, but the said plea stands belied from the fact that the appellants even failed to show or prove as to how they came into possession of the suit Regular Second Appeal No. 594 of 2009 3 property but with soft sound they admitted that the same was previously owned by Jagat Singh. Even the boundaries of the properties mentioned in the loan documents were found not tallying with the description of the property as narrated by the defendant in his cross-examination. Thus, the Courts below, on the strength of testimony of the plaintiff coupled with that of PW Mehar Singh and PW Didar Singh, concurrently held that it is the plaintiff who is owner in possession of the same to the extent of 1/2 share to the exclusion of the defendants, being the first class legal heir of Jagat Singh and defendants have no concern whatsoever therein. Although, an attempt was made by the defendants to take undue advantage by filing an application under Order 41 Rule 27 CPC for leading additional evidence in the shape of site plan which was allegedly prepared at the time of said exchange, but interestingly there was no mention of the same in the exchange deed Ex.DW1/A. Moreover, existence of the same at the time of exchange was doubted by the appellate Court below, rightly leading to the conclusion that the same is bereft of any merit and not necessary to adjudicate the lis between the parties. Thus, in the facts and circumstances of the case, it cannot be said that the approach of the Courts below in granting the relief to the plaintiff is either illegal or perverse. Nothing has been shown to take a contrary view than the one recorded by the Courts below. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE February 19,2009 Jiten