RSA No. 1098 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1098 of 2011 (O&M) Date of decision 27.7.2011. Lala Ram and another ...... Appellants. versus Suresh Kumar alias Shashi and another ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Rajesh Arora, Advocate for the appellants. K.C.PURI . J. C.M.No. 3053 C of 2011 Deficiency of Court fee is stated to have been made good. So, the application under Section 149 CPC stands allowed. C.M.No. 3054 C of 2011 2. For the reasons mentioned in the application, delay of 169 days in filing the appeal stands condoned. RSA No. 1098 of 2011 2 C.M. stands allowed. Main appeal. 3. Challenge in this regular second appeal is the judgment and decree dated 20.1.2010 passed by Shri Raminder Jain, learned District Judge, Gurgaon vide which the appeal preferred by the plaintiff against the judgment and decree dated 13.6.2009 passed by Shri Pawan Kumar, Civil Judge (Junior Division) Gurgaon was dismissed. 4. Plaintiff filed suit for permanent injunction on the pleadings that they are occupying portion marked in ABCD shown in red colour in the site plan situated within the abadi of village Sihi Tehsil and District Gurgoan and using the same as Nohra/Gitwar for tethering cattle since 1975. The plaintiffs were resident of village Sihi since its inception and are residing in their house which is adjacent to the passage shown in the site plan while defendants are the grandsons of deceased Daulat Ram, who are occuying the residential house situated on the northern side of the portion of the land of the plaintiff. The defendants have no concern with the land mentioned in the heading of the plaint and have never resided in village Sihi. 5. On notice, the defendant filed written statement contested the claim of the plaintiff raising the preliminary objection of locus standi, maintainability and cause of action, concealment of material facts and limitation. 6. On merits, it is pleaded that Daulat Ram was having ingress and outgress to his residential house towards back side of his house. The RSA No. 1098 of 2011 3 plaintiff has no concern with the suit property. It is pleaded that defendants removed the lock of the gate for entering the suit land and tried to take the possession illegally. The matter was settled with the intervention of the police. 7. Plaintiff filed replication denying the contents of the written reply and reiterated the stand taken in the plaint and the trial Court framed the following issues :- 1. Whether the plaintiff is entitled for the relief or permanent injunction against the defendant as prayed for ?OPP 2. Whether the plaintiff has no locus standi and cause of action to file the present suit ?OPD 3. Whether the suit of the plaintiffs is not maintainable in the present form ?OPD 4. Relief. 8. In order to prove their case plaintiff himself appeared as PW-1 and also examined Bishamber Dayal as PW-2 and Shri Ram Niwas as PW-3. 9. In defence, Suresh Kumar appeared as DW-1 and closed the evidence. 10. The learned trial Court after appraisal of the evidence on the file, decided issue No.1 against the plaintiff. However, issue Nos.2 and 3 were not pressed before the trial Court and as such the finding on these issues were returned against the defendants. However, in view of finding on issue No.1 suit of the plaintiff was dismissed. 11. Feeling dissatisfied with the above said judgment, the plaintiff/appellants have preferred the first appeal. The said appeal was RSA No. 1098 of 2011 4 heard by Shri Raminder Jain, District Judge, Gurgaon and the same was dismissed vide judgment and decree dated 20.1.2010. 12. Feeling dissatisfied with the judgment and decree dated 20.1.2010 passed by Shri Raminder Jain, District Judge, Gurgaon and the judgment and decree dated 13.6.2009 passed Shri Pawan Kumar, Civil Judge (Junior Division) Gurgaon, the plaintiff/appellants have preferred the present appeal. 13. The appellants in paragraph No.4 of the grounds of appeal have submitted that following substantial questions have arisen in the present case for determination :- i) Whether the Ld. Appellate Court failed to appreciate the pleadings and evidences in right perspective ? ii) Whether principle of acquiescence does not apply against the respondents ? 14. The plaintiff/appellants have filed suit for permanent injunction claiming themselves to be in possession of the suit land since 1975. Local Commissioner was appointed in the present case. As per that report khachar buggi was standing and other baggi of Lala Ram was also parked and a dip of rubbish and dung was lying there. So, it is contended that suit of the plaintiff should have been decreed by both the Courts below. 15. I have considered the said submission made by counsel for the appellant and have gone through the case file. 16. Both the Courts below have categorically held that mere standing of khachar buggi do not prove the possession of the plaintiffs. Both the Courts below have rightly held that suit property is a vacant land RSA No. 1098 of 2011 5 and the plaintiffs could not prove their ownership over the suit land. So, that being a finding of fact recorded by both the Courts below, cannot be interfered in the present appeal. So, I have no hesitation in holding that no substantial question of law, as claimed, have arisen in the present appeal. 17. Consequently, the appeal is without any merit and the same stands dismissed. 18. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 27, 2011 sv