R.S.A. No. 1124 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1124 of 2009 (O&M) Date of Decision : 16.3.2009 Joginder Kumar & another .......... Appellants Versus Harjit Singh & others. ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. L.M. Gulati, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 27.8.2004 and 23.1.2009 passed by the learned Courts below vide which suit filed by the plaintiffs / appellants for permanent injunction has been dismissed. The plaintiffs brought a suit for permanent injunction restraining defendants from demolishing the wall CDE shown in the plan annexed with the plaint or from interfering in the possession of the plaintiffs over the plot illegally and forcibly. It was the case of the plaintiffs that the property detailed in the heading of the plaint belonged to the Central Government which was part and parcel of Khasra No. 2582 in actual physical possession of Sh. Amarnath son of Sant Ram his predecessor in interest for more than 40 years. Sh. Amarnath, who was owner of the property situated towards the R.S.A. No. 1124 of 2009 2 northern side of the plot in dispute surrendered the possession of the suit property i.e. plot in dispute to the plaintiffs on 30.5.1998 and sold the property situated towards the northern side in favour of the plaintiffs on 1.6.1998 and since then the plaintiffs were in actual physical possession and are carrying on the business of Kabaria of Iron. The property of the defendants / respondents was situated towards the western side of the suit property which is divided by the intervening wall CDE. It was the case of the plaintiffs that the defendants were illegally and forcibly trying to dispossess the plaintiffs from the suit property. The plaintiffs claimed that as their request was not accepted, hence, the suit for permanent injunction. On notice, the suit was contested on a plea that suit property was not under the ownership of the plaintiffs. The property was said to be Gair-Mumkin-kabaristan, the ownership of which vested with the Punjab Wakf Board, Ambala Cantt. It was denied that Amarnath the vendor of plaintiffs was in actual physical possession of the suit land. It was also denied that the possession was surrendered by Amarnath to the plaintiffs on 30.5.1998. The stand of the defendants / respondents was that the plaintiffs were not sold the property situated towards the northern side of the suit property by way of sale deed dated 1.6.1998. The learned Courts below on appreciation of oral and documentary evidence on record recorded a concurrent finding of fact that the property in dispute was not in possession of Amarnath and thus the suit filed by the plaintiff / appellants was ordered to be dismissed. The learned counsel for the appellants contends that the learned R.S.A. No. 1124 of 2009 3 Courts below misread the evidence to non-suit the plaintiffs by placing reliance on the jamabandi for the year 1987 which in fact was not entered in accordance with law and, therefore, could not affect the right of possession of Amarnath who was shown to be in possession of the disputed land till 1987. The plea raised by the learned counsel for the appellants cannot be accepted. Admittedly the plaintiffs purchased the property from Amarnath in the year 1998 though he was not recorded as owner in possession of the suit property since 1987. Furthermore, it is admitted case of the plaintiff / appellants that the disputed plot was not sold as it was not under the ownership of Amarnath, only his possessory right was claimed. The plaintiffs in order to succeed in a suit for injunction were required to prove the ownership and interest of Amarnath in the disputed land from whom they were drawing their title. Once they failed to do so, the learned Courts below have rightly dismissed the suit filed by the plaintiffs. It is the contention of the learned counsel for the appellants that the defendant / respondents have no right to demolish the wall in existence. The learned counsel for the appellants on the basis of contention raised , pleads that the substantial question of law arising for consideration by this Court in this appeal is : Whether the findings of the learned Courts below are based on inadmissible evidence and, thus liable to be set aside ? However, the contentions raised do not advance the case of the R.S.A. No. 1124 of 2009 4 plaintiff / appellants in view of the positive evidence on record, nor the finding recorded by the learned Courts below are based on inadmissible evidence, as contended. It is also the contention of the learned counsel for the appellants that the witnesses appearing on behalf of the defendant / respondents admitted, that there was no proof of handing over of possession of the land to the defendants, and that the entries in this regard was merely paper transaction. This contention also does not advance the case of the plaintiffs, in view of the settled law that the plaintiffs were to stand on their own legs and not take advantage of the weaknesses of the defendant / respondents. The plaintiffs having failed to prove the case set up were not entitled to a decree. The substantial question of law does not arise for consideration in this appeal as findings are not based on inadmissible evidence. No merit. Dismissed. 16.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE