RSA No. 1716 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1716 of 2005 Decided on : 09-03-2009 Phool Chand ....Appellant VERSUS Garib Dass and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Ranjit Saini, Advocate for the appellant. Mr. Sanjay Verma, Advocate for the respondents. MAHESH GROVER, J This is plaintiff's second appeal directed against the judgment of the learned First Appellate Court dated 21.12.2004. The plaintiff-appellant filed a suit for permanent injunction seeking to restrain the respondents from interfering in his peaceful possession. It is pleaded by him that he is in cultivating possession of the suit property for last 30 years. The suit property belongs to the custodian of evacuee property. The suit was contested by the respondents who pleaded that they were in possession of the same. Both the parties went to trial on the following issues:- 1 Whether the plaintiff is in physical possession over the suit land and defendants are interfering in his possession illegally and forcibly? If so, whether plaintiff is entitled to the injunction as prayed for?OPP. 2. Whether the plaintiff has no locus standi or cause of action to file the present suit?OPD. RSA No. 1716 of 2005 2 3. Whether present suit is not maintainable in the present form?OPD. 4. Whether plaintiff is estopped from filing the present suit by his own act and conduct?OPD. 5. Whether present suit is bad for mis-joinder and non-joinder of parties?OPD. 6. Whether present suit is not properly valued?OPD. 7. Relief. Learned counsel for the appellant has contended that learned Trial Court has rightly decreed the suit of the plaintiff-appellant by holding that he was in possession and further directed that possession can be taken in due course of law but the learned First Appellate Court reversed the findings on pure conjectures by holding that the appellant is not in possession. It is pleaded that there is sufficient evidence on record to show that the suit property was in possession of one Lehna Ram and by virtue of an affidavit Ex.PX his LRs had relinquished their tenancy right in favour of the plaintiff-appellant and on the basis of that he was continuing in cultivating possession of the same. Learned counsel for the respondents on the other hand disputed the contentions of the learned counsel for the appellant and contended that affidavit on the basis of which possession is pleaded by the appellant was not proved in accordance with law and therefore, he has contended that the findings recorded by the learned First Appellate Court are correct. I have heard learned counsel for the parties and have perused the impugned judgments. The appellant pleaded possession on the basis of an affidavit RSA No. 1716 of 2005 3 which was executed by LRs of Lehna Ram, who was having actual and physical possession over the disputed property. Learned First Appellate Court has noted that affidavit Ex. PX which was executed by the legal representatives of deceased Lehna Ram allegedly relinquishing the tenancy in favour of the present appellant was not proved as none of them was examined as witness in support of such an execution. It is only Sadhu Ram PW3 who was Lambardar of the village who identified the deponents but in the absence of the executor of the affidavit and their non examination before the Court, testimony of PW3 is meaningless. That apart it is noticed that there is serious discrepancy regarding possession. Appellant could not state as to when he entered the possession of the suit property. It is pleaded by him that he was in cultivating possession of the suit property for the last 30 years but PW 2 in his testimony has stated that the plaintiff is cultivating the disputed land for last 15-16 years. Plaintiff has stated in his examination- in-chief that the suit land was duly cultivated by Lehna Ram whereas in the affidavit it is mentioned that the deceased Lehna Ram never cultivated the suit land. In this view of the matter, when there is total ambiguity in the evidence produced by the appellant in support of the plea that he is in possession,the findings of the learned First Appellate Court cannot be termed to be perverse so as to warrant interference in the present Regular Second Appeal. No substantial question of law has been shown to have arisen in the present appeal and the same devoid of any merit is hereby dismissed. March 9 , 2009 (Mahesh Grover) rekha Judge