Regular Second Appeal No. 2546 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2546 of 2011 Date of decision : June 03, 2011 Puran Singh ....Appellant versus Ajit Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Parminder Singh, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 7037.C of 2011 Allowed as prayed for. RSA No. 2546 of 2011 Puran Singh defendant having been successful in the trial court but unsuccessful in lower appellate court has filed the instant second appeal. Amarjit Singh plaintiff (since deceased and represented by his son Ajit Singh - respondent as his legal representative) filed suit against defendant-appellant for mandatory injunction directing defendant to hand over vacant possession of the suit property which is part of plaintiff's house. The plaintiff alleged that he is owner of the suit property. He gave the Regular Second Appeal No. 2546 of 2011 -2- same to defendant as licencee. However, defendant later on started claiming himself to be owner thereof. The plaintiff thereupon terminated the defendant's licence. In spite thereof, the defendant did not vacate the suit property necessitating filing of the suit. Defendant alleged that he is owner in possession of the suit house. He himself constructed the same in the year 1992 after getting site plan approved from Sarpanch, Lambardar etc. of the village. Gram Panchayat intended to initiate proceeding against the plaintiff regarding encroachment made by him and as a counter blast the plaintiff filed the instant suit. Learned Additional Civil Judge (Senior Division), Ambala City vide judgment and decree dated 23.7.2009 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Ambala vide judgment and decree dated 1.4.2011 and thereby suit filed by the plaintiff stands decreed. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff has produced sale deed dated 18.7.1963 vide which plaintiff purchased the house of which the suit property is a part. Defendant's son and attorney admitted that house and court yard of the plaintiff is known as 'Qila' in the village and plaintiff had purchased the same from Himmat Singh. Sale deed dated 18.7.1963 depicts that plaintiff purchased the property from Jaswant Kaur widow of Himmat Singh. The Regular Second Appeal No. 2546 of 2011 -3- trial court ignored the sale deed on the ground that it was not pleaded. The evidence is not required to be pleaded. The plaintiff claimed himself to be owner of the suit property and to substantiate his said plea the plaintiff produced in evidence the sale deed. The trial court also observed that boundaries of the property given in the sale deed do not tally with the boundaries of house of the plaintiff mentioned in the plaint. This observation is also not correct because perusal of the sale deed reveals that there was property of Somi towards east and common passage towards west. There was other property of plaintiff towards north and there was shamlat land towards south. Boundaries of the suit property as given in the plaint also depict street towards south and east and remaining part of the house of the plaintiff towards north and west. The sale deed coupled with admission of defendant's son and attorney proves that plaintiff was owner of the suit property. Defendant's son and attorney admitted that part of the plaintiff's huge property known as Qila was purchased by plaintiff Amarjit Singh from Himmat Singh about 35/40 years ago. It is, thus, manifest that entire house was not purchased by plaintiff through aforesaid sale deed but part thereof was purchased through aforesaid sale deed and the same is part of the bigger house of the plaintiff. Defendant's son and attorney also admitted the boundaries of the property of the plaintiff. Thus, lower appellate court has rightly held plaintiff to be owner of the suit property and thereby decreed his suit. The defendant claimed himself to be owner of the suit property. There is no documentary evidence on record to substantiate the said claim Regular Second Appeal No. 2546 of 2011 -4- of the defendant. Learned counsel for the appellant contended that possession of the defendant-appellant has been admitted to be for 30 to 40 years by plaintiff's witnesses. The contention is misconceived because the defendant himself pleaded that he constructed his house in the year 1992. In addition to it, the defendant pleaded that he constructed his house after getting site plan approved from Sarpanch, Lambardar etc. of the village. However, no such site plan has been produced by the defendant in his evidence giving rise to adverse presumption against the defendant. For the reasons aforesaid, it cannot be said that the finding recorded by the lower appellate court is based on misreading or misappreciation of evidence or is illegal or perverse so as to call for interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is found to be meritless and is accordingly dismissed in limine. ( L.N. Mittal ) June 03, 2011 Judge 'dalbir'