Regular Second Appeal No. 2049 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2049 of 2007 Date of decision : January 15, 2010 Dharam Pal and others ....Appellants versus Hans Raj and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RK Arya, Advocate, for the appellants Mr. Sandeep Arora, Advocate, for the respondents L.N. Mittal, J. (Oral) This is second appeal by the plaintiffs assailing judgment and decree dated 26.4.2007 passed by lower appellate court i.e. Additional District Judge, Gurdaspur whereby appeal preferred by defendant- respondents herein against judgment and decree dated 24.11.2003 passed by learned Additional Civil Judge (Senior Division), Gurdaspur, has been allowed. The plaintiffs filed suit for permanent injunction restraining defendants from interfering in the possession of the plaintiffs over the disputed house marked by letters ABCDEF in site plan annexed with the plaint as detailed in the head note of the plaint and from demolishing southern wall of the said house illegally and forcibly. The plaintiffs Regular Second Appeal No. 2049 of 2007 -2- alleged that they are permanent residents of village Bhangwan since birth. Their father died about three years back. Disputed house still stands in the name of their father. The plaintiffs are living in the disputed house peacefully for the last 60 years. However, defendants whose house adjoins the plaintiffs' house towards south threatened to demolish southern wall of the plaintiffs' house without any reason. Defendants, however, interalia, pleaded that the plaintiffs have illegally shown their possession over 5 marlas plot of defendant no. 1 in which boundary wall constructed by defendant no. 1 is in existence. Plaintiffs want to take illegal possession of the said 5 marlas plot of defendant no. 1. Defendant no. 1 is in possession of one kanal land and he constructed his house thereon. Learned Additional Civil Judge (Senior Division), Gurdaspur vide judgment dated 24.11.2003 decreed the suit of the plaintiffs. However, first appeal preferred by the defendants has since been allowed by learned Additional District Judge, Gurdaspur vide impugned judgment and decree dated 26.4.2007. Feeling aggrieved, the instant second appeal has been preferred by the appellants. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that the lower appellate court has allowed the appeal of the defendants merely on the ground that the suit property has not been properly described in the plaint but the said approach of the lower appellate court is illegal and perverse and therefore, un-sustainable. I find force in the aforesaid contention raised on behalf of the Regular Second Appeal No. 2049 of 2007 -3- appellants. The plaintiffs have fully described the disputed house in the plaint as well as in the site plan annexed with the plaint. Learned lower appellate court observed that name of village/city/district where the property in dispute is situated have not been mentioned. This approach is untenable because in the site plan annexed with the plaint it was specifically mentioned that the suit property is situated in village Bhangwan Tehsil and District Gurdaspur. Even in the plaint, the plaintiffs pleaded that they are permanent residents of village Bhangwan since birth and they are living in the disputed house. It is, thus, apparent that the suit property was properly described and it was also stated that the suit property is situated in village Bhangwan Tehsil and District Gurdaspur. Lower appellate court also observed that area of suit property is not mentioned in the head note of the plaint. However, area has been mentioned in paragraph 1 of the plaint as observed by lower appellate court itself and there is no requirement that said area should also have been mentioned in the head note of the plaint. As regards contradiction in the area mentioned in the plaint and in the affidavit of plaintiff no. 1 in the witness box, the lower appellate court could have appreciated evidence as per material on record but has not done so. Similarly non production of the document by which the property was purchased from Custodian could be taken note of to arrive at some conclusion but the lower appellate court dismissed the suit of the plaintiffs by allowing the appeal of the defendants merely on the ground that suit property has not been properly described or identified. This finding of the lower appellate court is completely perverse and illegal. The suit property has been properly and fully described in the plaint and the annexed site plan. In addition thereto, even the defendants Regular Second Appeal No. 2049 of 2007 -4- did not raise any objection regarding description of the suit property. The defendants also produced site plan Ex. D1 wherein the suit property is mentioned to be situated in village Bhangwan Tehsil and District Gurdaspur. Thus, description or identity of the suit property was not in dispute. For this reason as well judgment of the lower appellate court cannot be sustained. Lower appellate court has not discussed the evidence nor has given any finding regarding the merits of the dispute. Consequently, the case has to be remanded to the lower appellate court for fresh decision on merits in accordance with law. In view of the aforesaid, the instant second appeal is allowed and impugned judgment and decree dated 26.4.2007 passed by learned Additional District Judge, Gurdaspur are set aside and the case is remanded to learned Additional District Judge, Gurdaspur for fresh decision of the appeal (preferred by defendants) on merits in accordance with law. Records of both the courts below be sent to lower appellate court. Parties are directed to appear there on 15.2.2010. Lower appellate court shall decide the case as expeditiously as possible. ( L.N. Mittal ) January 15, 2010 Judge 'tiwana'