Regular Second Appeal No.2620 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2620 of 2009 Date of Decision:-11.7.2011 Gurmit Singh ...Appellant Versus Kailash Kaur and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Sanjay Majithia, Senior Advocate with Mr.Sunil Agnihotri, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and discussed the pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same in this context. However, crux of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, is that Gurmit Singh son of Shingara Singh appellant-plaintiff (for brevity “the plaintiff”) filed the suit seeking a decree for permanent injunction restraining Kailash Kaur wife of Dalip Singh and others respondent-defendants (for short “the defendants”) from interfering in any way in his (plaintiff) and his brother Jarnail Singh's peaceful possession and also from raising any type of construction over the property in dispute. 2. The case set up by the plaintiff, in brief in so far as relevant, was that Punjab Wakf Board was the owner of the land bearing Khasra No.30 measuring 7 kanals 7 marlas, situated in the area of village Kalyanpur, Tehsil Dasuya, Distt.Hoshiarpur. The portion depicted by letters ABCD in the site plan out of this land was claimed to be in cultivating possession of the plaintiff and his brother Regular Second Appeal No.2620 of 2009 -2- Jarnail Singh as lessees. The defendants were stated to have no concern or right in the suit property, but they are threatening to raise construction over it. The another suit titled as “Kailash Kaur and others Vs. Shingara Singh and others” filed by defendant Nos.1 to 4 against the plaintiff was pending in the Court at Dasuya. In all, according to the plaintiff that he alongwith his cousin brother Jarnail Singh was in cultivating possession of the land in dispute as lessees, but the defendants are threatening to raise construction over it without any legal right. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of permanent injunction against the defendants in the manner indicated hereinbefore. 3. The defendants contested the suit and filed their written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, cause of action, locus standi of plaintiff and identification of the property in dispute. The defendants claimed that the plaintiff, Jarnail Singh alongwith their brothers Ajit Singh, Partap Singh, Amarjit Singh, Dilbag Singh and Girdhara Singh were in joint possession as lessees of the land in dispute of Punjab Wakf Board measuring 7 kanals 7 marlas bearing Khasra No.30. They by way of mutual settlement separated their portions and raised their constructions over the respective portions. The plaintiff has also constructed his house on his portion and he has got nothing to do with the land in dispute, which had fallen to the share of their (defendant Nos.1 to 4) father, who was in exclusive possession of his partitioned land for the last more than 25 years. He has constructed his residential house/Haveli over it and after his death, they (defendant Nos.1 to 4) are in its possession. 4. Levelling a variety of allegations and narrating the sequence of events, in all, according to the defendants that the plaintiff has already constructed the house on his portion and he has got no right, title or interest in the land in dispute, which is in their (defendant Nos.1 to 4) possession. It will not be out of place to mention here that the defendants have stoutly denied all other allegations Regular Second Appeal No.2620 of 2009 -3- contained in the plaint and prayed for dismissal of the suit. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for adjudication:- 1. Whether the plaintiff is entitled to injunction as prayed for?OPP 2. Whether the defendants constructed Haveli in the land in their possession? If so its effect OPD 3. Relief. 6. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court, after taking into consideration the entire oral as well as documentary evidence on record, dismissed the suit of the plaintiff, by means of impugned judgment and decree dated 16.5.2002. 8. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 6.3.2007. 9. The plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is how I am seized of the matter. 10. After hearing the learned counsel for the appellant, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the appeal in this context. 11. Ex facie, the argument of the learned counsel that since the plaintiff alongwith his cousin brother Jarnail Singh was in possession of the property in dispute as lessees and the defendants have got no right or concern in it, so, the Courts below committed a legal mistake in dismissing his (plaintiff) suit, is not only devoid of merit but misconceived as well. 12. As is evident from the record that the land in dispute measuring 7 kanals 7 marlas belongs to Punjab Wakf Board and plaintiff is one of the lessees. The plaintiff claimed his exclusive possession of the disputed portion, which he Regular Second Appeal No.2620 of 2009 -4- has miserably failed to substantiate. On the contrary, according to the defendants that all the co-lessees were in joint possession of total land measuring 7 kanals 7 marlas and by way of mutual settlement, they separated their portions and raised constructions over their respective plots. The plaintiff has not intentionally given the measurements of the property in his possession, on which, he has already raised the construction. He has filed the false suit with regard to the property in dispute, which had fallen to the share of the father of defendants No.1 to 4 in mutual settlement. The defendants have duly proved their case in this respect by producing cogent and convincing evidence. 13. Moreover, having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court has observed (paras 13 and 15) as under:- “As per pleadings of the plaintiff, he alongwith Jarnail Singh is in possession of portion marked as ABCD shown as red in the site plan as a lessee under the Wakf Board. It is for the plaintiff to give the detailed description of the property and prove the same by way of leading the evidence. The plaintiff when himself appeared into witness box as his own witness as PW1, he has placed on file the site plan of the property Mark-A but this site plan remained unproved on the file. No witness has been examined by the plaintiff to prove the site plan nor the draftsman has appeared into witness box. The site plan Mark-A can not be read into evidence as discussed above no decree can be passed when the property is not identifiable. Therefore, plaintiff is not entitled to relief of this injunction on this short ground only. Ld.counsel for the defendants has argued that the defendants have constructed the havelies over the disputed property and they are in possession of the same. To prove his case, the defendants' counsel has drawn my attention to the cross-examination of plaintiff Gurmit Singh. The plaintiff has admitted that he has constructed two rooms and Mohinder Kaur is in possession of two different parts of the share which she has purchased. He also admitted the possession of Parduman and Dilbag Singh and then of Ajit Singh. He also admitted that Ajit Singh has constructed a room. He admitted the possession of Gardhara Singh on the northern part and Haveli of Guljar Singh consisting of two rooms at the spot. In the site plan prepared by the plaintiff himself, the construction has been shown. Therefore, I hold that defendants have constructed the Havelies at the spot and they are in possession of the suit property.” Regular Second Appeal No.2620 of 2009 -5- 14. Not only that, the judgment of the trial Court was upheld by the first appellate Court, by virtue of impugned judgment dated 6.3.2007, the operative part of which is (para 19) as under:- “The present appellant-plaintiff also can not be said to have approached the court with clean hands, rather he has suppressed the material facts. He no where disclosed that his father Shingara Singh as well as father of Jarnail Singh, namely Gurbachan Singh were in possession of the property in dispute alongwith Kirpal Singh as lessee rather he alongwith Jarnail Singh started claiming to be lessee directly under the Punjab Wakf Board in respect of land measuring 2 kanals 2 marlas in khasra No.30(7-7). In fact, Kirpal Singh left for heavenly abode and he is survived by respondents No.1 to 4, his daughters. The mere fact that the daughters are married at different places and are living in their in-laws house does not ipso facto mean that they are not in possession of the property in dispute. All the co-lessees and their sons have already raised construction of their residential houses as well as havelies and that the property in suit can be said to be in possession of Kailash Kaur etc. daughters of Kirpal Singh as by operation of law. They can be termed to have occupied the disputed property after the demise of their father. The appellant-plaintiff Gurmit Singh while appearing in the witness box as PW-1 and subjected to cross-examination has categorically admitted that he has raised the construction of two rooms. Similarly, Parduman Singh, Dilbagh Singh and Ajit Singh have also constructed their houses/havelies and are in possession of the specific areas. To the similar effect is his statement qua Mohinder Kaur, who is also in possession of two different parts of the share which were purchased by her. So, all these facts were concealed by him and such a person does not deserve any protection from the court. So, this court is of the considered view that no interference of this court is justified either in the findings returned by the learned lower court on both the issues No.1 and 2 or the impugned judgment and decree dated 16.5.2002. As such, same are up-held.” 15. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having analyzed the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has Regular Second Appeal No.2620 of 2009 -6- recorded the concurrent findings of fact that the defendants have constructed their houses and are in possession of the suit property. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this respect. 16. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the Courts below. 17. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 19. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 11.7.2011 Judge AS Whether to be referred to reporter?Yes/No