IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2915 of 1988 Date of decision: 22nd December, 2010 Sardar Singh … Appellant Versus Mukesh Singh and another … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Amar Singh Tewatia, Advocate for the appellant. Mr. C.B. Goel, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by defendant to the suit. Plaintiff-respondent Mukesh Singh instituted a suit for permanent injunction, wherein he averred that he was in cultivating possession of the suit land, the description whereof was given in the plaint, as a tenant at will on 1/3rd Batai since Kharif 1981. He further stated that defendant No.2-Rikhi Raj, who has died during the pendency of the present appeal, was owner of the suit land. It was pleaded that the appellant-defendant No.1 was taking active steps to dispossess the plaintiff-respondent forcibly and illegally from the suit land. The appellant-defendant No.1 to the suit claimed title of the property through Rikhi Raj. It is his case that Rikhi Raj had agreed to sell the property to him and had executed an agreement to sell on 7th October, 1981 and Rikhi Raj-defendant No.2 to the suit had put the present appellant-defendant No.1 to the suit in possession of the suit land. Regular Second Appeal No.2915 of 1988 After completion of the pleadings, following issues were formulated by the trial Court: “1. Whether the plaintiff is in possession of the suit land, if so, to what effect? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the present suit is hit by the principle of res-judicata? OPD 4. Whether the plaintiff is not properly described in the plaint regarding minority, if so to what effect? OPD 5. Relief.” The trial Court had not relied upon the testimonies of Ram Mehar PW-1, Imrat PW-2 and Babu Singh PW-3. It further held that a civil appeal was filed by Rikhi Raj-defendant No.2 to the suit against Sardar Singh present appellant-defendant No.1 to the suit, wherein Rikhi Raj was held to be in possession of the property. The plea raised by the plaintiff- respondent that he was not party to the suit, was given no credence. Hence, the suit of the plaintiff was dismissed. Aggrieved against the same, the plaintiff-respondent filed an appeal. The appellate Court below, relying upon the revenue record, came to a conclusion that the plaintiff was in possession of 7 kanals and 11 marlas of land. It further relied upon the testimonies of Ram Mehar PW-1, Imrat PW-2 and Babu Singh PW-3. However, the appellate Court below held that the plaintiff was in possession of the property. To arrive at this finding, a corroboration was sought from the testimonies of Bega DW-4 and Sardar Singh DW-5. It further held that the judgment Ex.DX was not binding upon the plaintiff. In the present regular second appeal, the finding returned by the lower appellate Court, which is purely based on appreciation of evidence, is assailed. 2 Regular Second Appeal No.2915 of 1988 Counsel for the appellant has stated that the lower appellate Court has held that the plaintiff-respondent is in possession of the suit land partly. This Court need not to divulge on this aspect, as both the Courts below have held that in the judgment Ex.DX rendered by the appellate Court, Rikhi Raj-defendant No.2 was held to be in possession of the suit land. Admittedly, the plaintiff-respondent was a tenant of Rikhi Raj at will on 1/3rd Batai. Once possession has not flown from Rikhi Raj to the appellant, the possession of the plaintiff-respondent cannot be eclipsed, as the same has passed from Rikhi Raj to him. Hence, no interference is warranted in the present appeal and the same is hereby dismissed, especially when no substantial question of law arises for consideration of the Court. [KANWALJIT SINGH AHLUWALIA] JUDGE December 22, 2010 rps 3