Regular Second Appeal No. 4810 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 4810 of 2010 Date of Decision: 28.7.2011 Surinder Singh …Appellant Versus Gurdial Kaur and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Kuldeep Khandelwal, Advocate for Mr. Rajesh Khandelwal, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) This is plaintiff's regular second appeal. Having failed in two rounds of litigation, he approached this Court by fling the present appeal. Briefly stated, the appellant/plaintiff had filed a suit for permanent injunction with a prayer that the defendants/respondents be restrained from interfering, in any manner, in his peaceful possession and ownership over the plot measuring 2100 square yards, details and description whereof were given in head note of the plaint. It was pleaded that the appellant/plaintiff had purchased bara in an open auction, which is situated in abadi of village Adhoya Muslmanan, bearing hadbast No. 209, Tehsil Barara, District Ambala, on 27.11.1972. it was further stated that this sale was confirmed by the Settlement Officer (Sales), Ambala, Regular Second Appeal No. 4810 of 2010 2 on 23.1.1973. The appellant/plaintiff had deposited the entire auction money and warrants of possession was issued in his favour by the Tehsildar (Sales)-cum-Managing Officer, Ambala, on 6.2.1973 and he was given possession of the plot in question vide rapat roznamcha No. 281 dated 1.3.1973. It was further pleaded that the sale deed/sale certificate dated 1.6.1999 was also issued in favour of the appellant/plaintiff. According to the appellant/plaintiff, the defendants have no concern with the property in question and they threatened to dispossess him from it forcibly and illegally. It will be pertinent to mention here that defendant No.1-Gurpal Singh is real brother, whereas defendant No.2- Charanjit Singh and defendant No.3-Sher Singh alias Shera are nephews of the appellant/plaintiff. Upon notice, the defendants caused their appearance and filed a written statement, wherein they pleaded that there was suppression of true and actual facts. The property, vide family settlement, has been divided and they attached the site plan along with their written statement. It was stated that the defendants are owners in possession of the portion marked as ABCD, whereas the appellant/plaintiff is in possession of the portion marked as HIJK and LMNO. They have mentioned the portions in the site plan which are with all the four brothers. It was further stated that the alleged deed of conveyance, executed in favour of the appellant/plaintiff, is nothing but the document signifying ownership of all the four brothers, which was subsequently adjacent with the abadi land and was distributed amongst the plaintiff, defendant No.1 and other brothers by their father. The trial Court, after completion of the pleadings, had formulated the following Regular Second Appeal No. 4810 of 2010 3 issues:- “1. Whether the plaintiff is owner in possession of the land in dispute? OPP 2. Whether the defendants are in possession of specific portion of land in view of family settlement? OPD 3. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 4. Relief.” The plaintiff himself appeared as PW.1 and also examined Ravinder Kumar, Clerk from the office of Tehsildar (Sales) as PW.2 . Besides that he tendered into evidence a photocopy of sale deed dated 1.6.1999 as Ex.P1, photocopy of site plan as Ex.P2 and photocopy of warrants of possession as Ex.P3. On the other hand, the defendants examined Mohinder Singh as DW.1, Mohan Dass as DW.2 and Charanjit Singh as DW.3. They have placed on record site plan Ex.D1. The trial Court held that the appellant/plaintiff was able to prove his ownership over the property in dispute but he has miserably failed to identify the plot in dispute and its possession thereon. The trial Court took into consideration admissions made by the appellant/plaintiff in his cross-examination that all the four brothers were living separately since 1968 and during his life time, father of the appellant/plaintiff had given them separate lands on which they had constructed their separate residential houses and they are living there in same manner till date. The trial Court further held that the appellant/plaintiff has established his Regular Second Appeal No. 4810 of 2010 4 ownership over the plot in dispute but he failed to establish his possession over it. At the same time, the trial Court held that the defendants have established their possession over the specific portion marked as ABCD in the site plan Ex.D1. Aggrieved against the same, the appellant/plaintiff has filed an appeal. The lower Appellate Court, vide its judgment dated 24.5.2010, concurred with the findings given by the trial Court and further observed that the site plan Ex.P2 attached with the conveyance deed Ex.P1 executed by Tehsildar (Sales) is not sufficient to identify the possession of the parties over the suit land. The lower Appellate Court relied upon the site plan Ex.D1, proved by the defendants, wherein description of the houses of all the four brothers, was shown. Furthermore, the lower Appellate Court held that from the report of the Local Commissioner, it is apparent that the appellant/plaintiff has failed to identify the property before the Local Commissioner. Thus, the lower Appellate Court held that there is no infirmity in the order passed by the trial Court. Mr. Kuldeep Khandelwal, Advocate, appearing for Mr. Rajesh Khandelwal, Advocate, learned counsel for the appellant, has submitted that once the trial Court held that the ownership of the appellant/plaintiff over the suit property is proved, this Court should have issued injunction against the defendants not to interfere in his peaceful possession over it. The ownership per se will not prove possession of the plaintiff. It was for the appellant/plaintiff to prove that he is in possession of the specific portion of the suit property. The plaintiff has failed to discharge this onus. The findings recorded by both the Courts below are based on appreciation of evidence. Records of this case were called on Regular Second Appeal No. 4810 of 2010 5 19.4.2011. Today, I have also perused the record and has given an ample opportunity to learned counsel for the appellant/plaintiff to show any document or evidence of the witness wherefrom possession of the appellant/plaintiff is discernible. Whether the appellant/plaintiff is in possession over the disputed property or not is a question of fact. A concurrent finding that the appellant/plaintiff is not in possession of the plot in dispute has been returned by both the Courts below. Learned counsel for the appellant/plaintiff has laid no material before me to differ with the findings recorded by both the Courts below. Thus, this Court is hesitant to entertain the present appeal especially when no point of law, much less a substantial one, arises for consideration during the course of arguments. Hence, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge July 28, 2011 “DK”