Regular Second Appeal No.970 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.970 of 2008 Date of Decision:-7.9.2011 Nirmal Singh & Anr. ...Appellants Versus Gurmej Singh & others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Baldev Raj Mahajan, Advocate for the appellants. Mr.Karanjit Singh, Advocate for respondent No.4. Respondent Nos.1 & 2 already exparte. Nemo for respondent No.3. M ehinder S ingh S ullar , J . (Oral) Having kept the law laid down by Hon'ble Apex Court in case Kashmir Singh vs. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 into focus, now the short and significant question, though important that arises for determination is, as to whether any substantial question of law is involved in the instant regular second appeal, so as to invoke the jurisdiction vested in this Court under Section 100 C.P.C or not ? 2. The conspectus of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the present regular second appeal and emanating from the record, is that Nirmal Singh son of Tara Singh and Chanchal Singh son of Kapur Singh appellant-plaintiffs (for brevity “the plaintiffs”) filed the suit for a decree of declaration to the effect that they are owners and in possession of disputed land measuring 8 kanals, bearing Khasra No.214, situated within the area of village Devidaspura, Tehsil and Distt.Amritsar, with a consequential relief of permanent injunction, restraining Regular Second Appeal No.970 of 2008 -2- Gurmej Singh son of Gurbux Singh and others respondent-defendants (for short “the defendants”) from interfering into their possession over it. 3. According to plaintiffs that Gurdit Singh son of Gurbux Singh, uncle of defendant Nos.1 and 2 and husband of defendant No.3 was co-sharer in possession of the land in dispute. He was stated to have sold the suit land to the plaintiffs, by virtue of three unregistered sale deeds dated 9.2.1994, 2.3.1994 and 5.3.1994s (Ex.PW2/A to Ex.PW2/C) and possession was handed over to them. The plaintiffs have converted the same into passage. They claimed that Surjit Singh (defendant No.4) got illegally entered the mutation in his favour as purchaser of the disputed land from defendant Nos.1 to 3, which was stated to be illegal, void and not binding on their rights. The defendants were stated to have threatened to forcibly dispossess them from the land in dispute and to dismantle the passage, without any legal right. On the basis of aforesaid allegations, the plaintiffs filed the suit seeking a decree for declaration/permanent injunction against the defendants in the manner indicated hereinbefore. 4. As defendant No.1 did not appear despite service, therefore, exparte proceedings were ordered against him by the trial Court. However, defendant Nos.2 to 4 contested the suit and filed the written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiffs. The case set up by the contesting defendants, in brief in so far as relevant, was that defendant No.4 is a bonafide purchaser for consideration without notice. Gurdit Singh never came into possession. The alleged three unregistered sale deeds were termed to be forged and fabricated documents. It was claimed that defendant Nos.1 to 3 sold the property in dispute to defendant No.4 for a total consideration of ` 7000/-, by means of registered sale deed dated 4.11.1997 (Ex.DW1/B) and delivered the actual possession to him. It was alleged that Gurdit singh was not competent to sell the suit land. It will not be out of place to mention here that the contesting defendants have stoutly denied all Regular Second Appeal No.970 of 2008 -3- other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 6. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded cases. 7. The trial Court held that the three unregistered sale deeds (Ex.PW2/A to Ex.PW2/C) would not confer any title of the property in dispute on the plaintiffs. However, the defendants were restrained from interfering into their possession over it, by way of judgment and decree dated 5.4.2005. 8. Aggrieved by the decision of the trial Court, the plaintiffs filed Civil Appeal, bearing No.116 of 12.5.2005/26.6.2007, while Surjit Singh vendee- defendant No.4 filed Civil Appeal bearing No.117 of 4.5.2005/26.6.2007. The first appellate Court dismissed the appeal filed by the plaintiffs, however, the appeal filed by Surjit Singh defendant No.4 was accepted, by virtue of impugned judgment and decree dated 2.2.2008. 9. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 10. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the argument of learned counsel that since the plaintiffs are proved to be in possession of the suit land, so, the Ist Appellate Court fell in error in dismissing their suit in its entirety, lacks merit. 12. As is evident from the record that the plaintiffs have claimed their ownership and possession of the land in dispute on the basis of alleged Regular Second Appeal No.970 of 2008 -4- unregistered sale deeds (Ex.PW2/A to Ex.PW2/C), which were rightly ignored by the Courts below. On the contrary, defendant No.4 is proved to have purchased the disputed land from defendant Nos.1 to 3 for a consideration of ` 7000/- , by means of registered sale deed (Ex.DW1/A). The first appellate Court, after considering the entire evidence on record, in the right perspective, has recorded the finding of fact that plaintiffs have miserably failed to establish the identity of the property in dispute. Moreover, mere using the passage is not sufficient to prove that they are in actual possession of the disputed property and rightly negatived their claim, through the medium of impugned judgment dated 2.2.2008, which, in substance, is (paras 14 and 15) as under:- “14. The existence of the passage in the property in dispute, even if, proved is not an act of possession on the part of plaintiffs. PW1 has mentioned in his report that Ex.PW1/A that disputed land is shown as mark b in the rough site plan and the same is in the shape of plot and is not having demarcation. He has also mentioned in his report that there exist a passage, which passes through disputed land, but it is not made of bricks, it is just a normal way out. PW1 has also stated in the cross examination that the street in dispute is type of pagdandi i.e. passage on which the tractor passes. The space lying on the eastern side of the house of the plaintiff is vacant. The said open space touches the main road. The rough site plan Ex.PW1/3 shows that towards the southern side of the house of Chanchal Singh, there is open space belonging to the plaintiffs. On the western side of the said space there is a passage marked as C1. The disputed land is mark-B in the site plan. The alleged passage passes through the portion mark-B. It further leads to the passage, to the house of Chanchal Singh, plaintiff. It has not a sanctioned passage. It has only an impression of passage as inhabitants passed through a particular place lying open. It cannot be said to be in possession of the plaintiffs. It cannot be said to be an act of possession on the part of the plaintiffs. The haveli being used by the plaintiffs in the disputed property is not shown anywhere. 15. The plaintiffs have allegedly purchased 8 marlas of land in khasra no.214 in three different sale deeds. Each subject matter of the sale deed is defined by the boundary. The plaint is however silent about the Regular Second Appeal No.970 of 2008 -5- description of the subject matter of each sale deed. The plaintiffs should have submitted the site plan to establish the identity of subject matter of the sale deeds. The report of the Local Commissioner is not capable of reliance because the disputed land shown in the letter-B in the site plan touches the street on southern side. Copy of Akshsahjra Ex.DW1/D shows khasra no.214 having different shape and size than described by Local Commissioner in his site plan. There is no cogent evidence on the file as to how the Local Commissioner established the identity of the property in dispute. The doors of the houses of the plaintiffs open towards different directions. The witnesses examined by defendant have stated that plaintiffs are passing through the property in dispute, but the said act of plaintiffs is not sufficient to prove their act of possession. Had the plaintiffs claimed the easementory right over the property in dispute, the matter would have been different? There is no revenue record on the file to prove the possession of the plaintiffs over the khasra no.214. The plaintiffs are not hence proved having any right in property in dispute.” 13. The learned counsel for the appellant-plaintiffs did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgment and decree of the Ist appellate Court are illegal and would invite any interference in this relevant behalf. 14. Meaning thereby, the Ist appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, it has recorded the above-mentioned findings of fact. Such 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. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant- plaintiffs, so, the impugned judgment of Ist appellate Court deserves to be and is hereby maintained under the present set of circumstances. 15. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiffs to assail the findings of the Ist appellate Court. Regular Second Appeal No.970 of 2008 -6- All other arguments, relatable to the appreciation of evidence, now sought to be urged on their behalf, in this relevant direction, have already been duly considered and dealt with by the Ist appellate Court. 16. Above-all, the entire case 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 judgment and decree of the Ist appellate Court, 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. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 7.9.2011 Judge AS Whether to be referred to reporter?Yes/No