R.S.A. No. 1020 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1020 of 1985 Date of Decision: 11.9.2008 Sohan Singh ...Appellant. Versus Ajit Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. D.S. Bali, Senior Advocate with Mr. D.V. Gupta, Advocate for the appellant. Mr. Dheeraj Jain, Advocate for respondent No.1. AJAY KUMAR MITTAL, J. Challenge in the present regular second appeal filed by the defendants is to the judgment and decree dated 12.11.1984 passed by the first appellate court whereby the judgment and decree dated 3.9.1983 passed by the trial court decreeing the suit of the plaintiff for declaration and permanent injunction was upheld. Brief facts of the case are that the plaintiff filed a suit for a decree for declaration to the effect that he was owner of the land measuring 1 kanals 11 marlas, comprised in rectangle No. 23, killa No.2/1 and kotha, tubewell and bore worked by electric motor shown by letter 'W' and described by letters ABCDEFGHIJA as shown in the site plan attached with the plaint; with consequential relief of permanent injunction restraining the defendants from interfering in the peaceful R.S.A. No. 1020 of 1985 -2- possession of the plaintiff over the suit land. It was pleaded that vide sale deed dated 19.7.1979, the plaintiff and defendant No.5 purchased the suit land from their father, Sadhu Singh, and subsequently, under a compromise between them, the plaintiff became owner of the same along with the tubewell and electric motor installed in the kotha in dispute. It was further pleaded that the plaintiff applied for the electric connection for the tubewell and sent his brother Sohan Singh, defendant No.1 to submit an application before the SDO at Dina Nagar but later on, he came to know that he had submitted the said application in his own name and the connection was sanctioned in the name of defendant No.1. It was also pleaded that by doing so, defendant No.1 had cheated the plaintiff and that on the basis of the same, the defendants threatened to dispossess the plaintiff from the suit land illegally and forcibly and that gave rise to the filing of the suit. The suit was contested by defendants No.2 to 4 by filing a joint written statement and raising various preliminary objections. It was pleaded that the electric motor, tubewell and the pipes fixed in the tubewell along with the kotha were given to defendant No.1 for a consideration of Rs.3900/- on the basis of the award dated 23.5.1981 passed by the Arbitrator. It was further pleaded that defendant No.1 was already owner to the extent of 1/3rd share in the suit land and the price of the articles was fixed by auction and defendant No.1 was the final bidder. Defendant No.5 had received Rs.1300/- as his share vide receipt dated 5.9.1981 from defendant No.1 and the share of the plaintiff amounting to Rs.1300/- was left with the Arbitrators for payment to him. The balance amount of Rs.1300/- was retained by defendant R.S.A. No. 1020 of 1985 -3- No.1 as his share. According to the answering defendants, the plaintiff admitted the factum of partition and signed the proceedings before the Arbitrator. It was also pleaded that the electric motor was purchased out of the pay of defendant No.1 who was employed in the Army and he used to send money to his father when all the family was joint. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. Defendant No.1 was proceeded against exparte vide order dated 1.10.1981 passed by the trial court whereas defendant No.5 filed a written statement admitting the claim of the plaintiff and also the fact of compromise dated 19.4.1981 vide which the suit land fell to the share of the plaintiff. From the pleadings of the parties, the trial court framed the following issues:- “1. Whether the plaintiff and defendant No.5 became owners of the suit land by virtue of the sale deed dated 19.7.1979? OPP 2. Whether the suit land fell to the share of the plaintiff in compromiser between him and defendant No.5? OPP 3. Whether the plaintiff purchased the electric motor installed in the suit land? OPP 4. Whether the plaintiff applied for electric connection for tubewell and sent defendant No.1 to the Electricity Department for this purpose but defendant No.1 instead obtained the connection in R.S.A. No. 1020 of 1985 -4- his own name? OPP 5. Whether the plaintiff is in possession of the suit land and the electric motor and the tubewell and the defendants have threatened to dispossess him forcibly? OPP 6. Whether there was arbitration as alleged in preliminary objection so, what is the effect of the decision by the Arbitrators dated 23.5.1981? OPP 7. Whether the plaintiff is entitled to the injunction as prayed for? OPP 8. Relief.” The trial court took issues No.1 and 2 together being inter- connected and on appreciation of the oral as well as the documentary evidence led by the parties decided the said issues in favour of the plaintiff holding that on the basis of compromise arrived at after the sale-deed, the suit land fell to the share of the plaintiff and he was owner of the same. Issue No.3 was decided in favour of the plaintiff holding him to be the owner of the tubewell and the kotha along with electric motor fitted therein. Accordingly, the suit filed by the plaintiff was decreed by the trial court vide judgment and decree dated 3.9.1983. Being not satisfied, defendant No.1 approached the lower appellate court by way of appeal against the judgment and decree of the trial court, which finding no merit in the appeal dismissed the same vide judgment and decree dated 12.11.1984. I have heard the learned counsel for the parties and perused the record with their assistance. R.S.A. No. 1020 of 1985 -5- Learned counsel for the appellant has strenuously argued that the courts below had misread the documentary evidence and had also misappreciated the oral testimonies of the witnesses produced by the plaintiff-respondent No.1. He has further submitted that the suit of the plaintiff was wrongly decreed by the courts below. On the other hand, learned counsel for respondent No.1 has vehemently controverted the submissions made by the learned counsel for the appellant and supported the judgments passed by the courts below. He has further submitted that the findings recorded by the courts below are concurrent findings of fact and call for no interference by this Court. According to him, no substantial question of law arises in the appeal. Learned counsel for the appellant could not show that the concurrent findings of fact recorded by the courts below suffer from any misreading or misappreciation of evidence which may warrant interference by this court in the regular second appeal. The courts below had rightly decreed the suit of the plaintiff especially when nothing was produced on the record to show that Sadhu Singh was not competent to alienate the suit land as in the revenue record the suit land was in the name of Sadhu Singh, who vide sale-deed, Ex.P1, sold the same to the plaintiff and defendant No.5. Moreover, claim of the plaintiff had been admitted by defendant No.5. In view of the above, I find no merit in this appeal and the same is hereby dismissed with no order as to costs. September 11, 2008 (AJAY KUMAR MITTAL) gbs JUDGE