Regular Second Appeal No. 2866 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2866 of 2009 Date of decision: 05.08.2009 Ram Lal son of Sh. Kaur Sain son of Shri Boria Mal r/o Opposite Sunni Gali Gaushala Road, Mansa Tehsil and District Mansa. ..... Appellant. Versus Sukhdev Raj son of Kaur Sain son of Shri Boria Mal r/o Vaid Kapoor Wali Gali, Mansa, Tehsil and District Mansa. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. P.S. Dhaliwal, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 22.09.2008, rendered by the Court of Civil Judge (Junior Division), Mansa, vide which it decreed the suit of the plaintiff Regular Second Appeal No. 2866 of 2009 -2- and the judgment and decree dated 18.03.2009, rendered by the Court of District Judge, Mansa, vide which it dismissed the appeal. 2. The brief facts of the case, are that Prem Chand and Sarna Mal sons of Kaur Sain were the owners to the extent of ½ share each, in one plot, as fully detailed in the head note of the plaint, after having purchased the same from Zora Singh etc., vide registered sale deed dated 17.11.1976. Out of the said property, Prem Chand sold the disputed plot measuring 19 feet x 49-1/2 feet, fully detailed in the head note of the plaint, vide registered sale deed dated 17.06.2003, to the plaintiff, and, as such, he (plaintiff) became the owner of the same. The defendant took forcible and unauthorized possession of the plot, in question, on 13.04.2004. It was further stated that the defendant was asked many a time, to vacate the same, but to no avail. Regular Second Appeal No. 2866 of 2009 -3- Even a legal notice dated 06.05.2005 was served upon the defendant, whereby he was asked to hand over the possession of the plot, but in vain. It was further stated that the defendant was asserting his right over the property, in dispute, on the basis of some fake documents. On the final refusal of the defendant, to admit the claim of the plaintiff, left with no alternative, a suit for possession was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement, wherein, it was averred that the suit was not maintainable; that the plaintiff had not come to the Court with clean hands; that the plaintiff had concealed the material facts, and, as such, was not entitled to the relief of mandatory injunction; that the plaintiff had no locus standi and cause of action to file the suit; and that the suit was barred by the principles of Regular Second Appeal No. 2866 of 2009 -4- res-judicata. It was stated that the defendant had been in possession of the plot, in dispute, since 1985-86, as per the memo of partition, which was reduced in writing on 20.06.1997 and this fact was in the knowledge of the plaintiff. It was further stated that Prem Chand, the real brother of the parties, executed the sale deed dated 17.06.2003 fraudulently. It was further stated that the defendant constructed the house, over the plot, in question, with his own funds, after the partition. The purchase of plot, in the name of Sarna Mal and Prem Chand, vide sale deed no.2604 dated 17.11.1976 was admitted. It was stated that the property was jointly purchased, with the earnings of all the brothers. The remaining averments contained in the plaint were denied. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- Regular Second Appeal No. 2866 of 2009 -5- “1- Whether the plaintiff is entitled to the decree of possession as prayed for ?OPP 2- Whether the suit of the plaintiff is not maintainable in the present form ?OPD 3- Whether the plaintiff has not come to the Court with clean hands ?OPD 4- Whether the suit is bad for non- joinder of necessary parties ? OPD 5- Whether the plaintiff has got no cause of action and locus standi to file the present suit ?OPD 6- Whether the suit is hit by principle of res-judicata ?OPD 7- Whether the defendant is entitled to special costs to the tune of Rs.25,000/- ?OPD 8- Relief.” 5. The parties led evidence in support of their case. The trial Court after hearing the Counsel for the parties, Regular Second Appeal No. 2866 of 2009 -6- and, on going through the evidence and record of the case, decreed the suit. 6. Feeling aggrieved, against the judgment and decree dated 20.09.2008, rendered by the trial Court, the defendant-appellant,filed an appeal before the Appellate Court, at Mansa, which vide its judgment and decree dated 18.03.2009 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal has been filed, by the appellant-defendant. 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 no reasonable opportunity was granted to the defendant(now appellant) to produce and conclude his evidence. He further submitted that the evidence of the defendant (now appellant) was illegally closed by the trial Court. He further submitted that the defendant Regular Second Appeal No. 2866 of 2009 -7- (now appellant) was, thus, condemned unheard. He further submitted that an application for additional evidence was filed by the plaintiff, which was allowed. He further submitted that the plaintiff (now respondent) in additional evidence, produced evidence, but no opportunity was granted to the defendant (now appellant) to rebut the same. He further submitted that the defendant (now appellant ) was the owner in possession, of the plot, over which he raised construction, which fell to his share in the family partition. 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, Regular Second Appeal No. 2866 of 2009 -8- 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 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 judgments of the Courts below, is confined only to the hearing of substantial questions of law. From the evidence, it was proved, that Prem Chand alongwith Sarna Mal sons of Kaur Sain purchased the property from Zora Singh Regular Second Appeal No. 2866 of 2009 -9- etc., vide sale deed dated 17.11.1976. The plot measuring 19 feet x 49-1/2 feet was sold by Prem Chand in favour of the plaintiff (now respondent), vide sale deed dated 17.06.2003, as he was the exclusive owner thereof. No doubt, the defendant set up a family settlement, which was reduced into writing on 20.06.1997, as a result whereof, the plot fell to his share and he raised construction of his house thereon. He, however, did not produce any document with regard to the family settlement, as such, his plea, in that regard, was not established. Sufficient opportunity was granted to the defendant, to lead and conclude his evidence, but he failed to conclude the same. It could not be said that the defendant (now appellant) was condemned unheard. Had reasonable opportunity been not granted to the defendant (now appellant), the matter would have been different. In those circumstances, the Appellate Court might Regular Second Appeal No. 2866 of 2009 -10- have thought, to remand the case, after setting aside the judgment and decree of the Court below. When the defendant (now appellant) failed to produce any evidence, despite granting him sufficient opportunity, there was no alternative left with the trial Court than to close the same. The order closing the evidence of the defendant (now appellant) by the trial Court, therefore, could not be said to be illegal, in any manner. No ground, whatsoever, is made out, for giving another opportunity to the defendant (now appellant) to lead his evidence. The concurrent findings of fact, recorded by the Courts below, that the plot, in question, was sold in favour of the plaintiff, by Prem Chand, who was the exclusive owner thereof; that the defendant failed to produce any family settlement, according to which he claimed that the plot, in dispute, fell to his share; that the defendant was in illegal possession of Regular Second Appeal No. 2866 of 2009 -11- the plot, in dispute; and that the plaintiff was entitled to the decree for possession, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference by this Court. 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 with costs. ( Sham Sunder ) 05.08.2009, Judge dinesh