Regular Second Appeal No. 1772 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1772 of 2011(O&M) Date of decision : April 25, 2011 Nagar Council, Sunam ....Appellant versus Atul Gupta and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Naresh Jain, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 4987.C of 2011 Allowed as prayed for. CM No. 4988.C of 2011 Although from the averments made in the application which is accompanied by affidavit, delay in filing the appeal is not satisfactorily explained, yet adopting liberal approach, the delay of 242 days in filing the appeal is condoned. RSA No. 1772 of 2011 Defendant no. 1 Nagar Council, Sunam having failed in both Regular Second Appeal No. 1772 of 2011(O&M) -2- the courts below has filed the instant second appeal. Respondent no. 1 – plaintiff Atul Gupta filed suit against defendant no. 1 – appellant and its President (proforma respondent/defendant no. 2) alleging that plaintiff is owner in possession of the triangular property in dispute situated adjacent to his other property but the defendants threatened to interfere in possession of the plaintiff thereon and to dig out a drain through it without any right to do so. Permanent injunction against said threatened action was claimed by the plaintiff. The defendants broadly denied the plaint allegations and inter alia, pleaded that the suit property is part of Shiv Niketan Chowk and is owned by defendant no. 1. In order to beautify the chowk, defendant no. 1 intends to dig out drain through the suit property abutting the shops of the plaintiff. Various other pleas were also raised. Learned Civil Judge (Junior Division), Sunam vide judgment and decree dated 26.7.2004 decreed the plaintiff's suit. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Sangrur vide judgment and decree dated 23.4.2010. Feeling aggrieved, defendant no. 1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The suit property is admittedly situated within Lal Lakir. Consequently, neither party has document of title thereof. However, the plaintiff produced house tax assessment register entries maintained by defendants themselves depicting that plaintiff is owner of the suit property. Regular Second Appeal No. 1772 of 2011(O&M) -3- The house tax registers are being maintained by the defendants. They are receiving house tax from the plaintiff for the suit property and other property of the plaintiff abutting it. Thus, from the defendants own documents it is proved that plaintiff is owner of the suit property. On the other hand, defendant no. 1 maintains register of its properties but the defendants have not produced any document to depict that the suit property is owned by it. Moreover, there is already a drain of the defendants abutting the road beyond the suit property. If the suit property had been owned by defendant no. 1, the drain would have been dug in the first instance itself through the suit property abutting the other shops of the plaintiff. The very fact that the said drain was dug by the defendants beyond the suit property also depicts that suit property is not of defendant no. 1 -appellant but is of the plaintiff. Plaintiff examined Gurtej Singh PW1 a Clerk of the defendants. The said witness stated in his affidavit of examination-in-chief that suit property belongs to plaintiff's grand-father and predecessor Mehar Chand. This evidence by official of defendant no. 1 – appellant also demolishes the case of the defendants. Of course this witness stated in cross-examination that he had himself not mentioned the aforesaid fact in his affidavit of examination-in-chief. However, in cross-examination he tried to deny the entire affidavit of examination-in-chief by stating that he did not know the contents thereof. Be that as it may, entries of house tax assessment registers Ex. P1 to P8 maintained by the defendants depict the suit property to be of the plaintiff along with other adjoining property as claimed by him. Regular Second Appeal No. 1772 of 2011(O&M) -4- Plaintiff's predecessor Mehar Chand had also filed ejectment petition under Rent Act against a tenant. Documents from the said case also depict the suit property to be part of the plaintiff's property. Those documents pertained to the period when there was no dispute regarding suit property with defendant no. 1 and consequently, the said documents cannot be said to have been created. Copy of Khasra Town Plan Ex. P41 proved by Sat Pal Ram Clerk of defendant no. 1 as PW6 also negates the claim of the defendants. This witness stated that the aforesaid plan reflected drains, streets, roads and chowks in the town. However, the suit property has not been depicted in the said plan. It would again depict that the suit property is not of the defendants. This property has also not been depicted in Khasra Town Plan register prepared by defendant no. 1 – appellant. It, thus, becomes manifest that defendant no. 1 is not owner of the suit property and rather plaintiff is owner thereof. Defendant no. 1 also alleged by moving application in the trial court that Police Post has been constructed in the suit property without any objection from the plaintiff depicting that the suit property is of defendant no. 1 – appellant. However, Local Commissioner appointed on the prayer of the defendants reported that Police Post is not situated in the suit property. For the reasons aforesaid, concurrent finding recorded by the courts below against the defendants and in favour of the plaintiff is justified by the evidence on record and therefore, the said finding does not warrant Regular Second Appeal No. 1772 of 2011(O&M) -5- interference in exercise of second appellate jurisdiction as the said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. ( L.N. Mittal ) April 25, 2011 Judge 'dalbir'