Regular Second Appeal No. 743 of 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 743 of 2008(O&M) Date of decision : October 04, 2010 Smt. Parbati ....Appellant versus Niranjan Lal and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. SK Yadav, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 2376.C of 2008 Allowed as prayed for. CM No. 2377.C of 2008 Allowed as prayed for. CM No. 2378.C of 2008 For reasons mentioned in the application which is accompanied by affidavit, delay of 11days in filing the appeal is condoned. The application stands allowed accordingly. RSA No. 743 of 2008 Smt. Parbati plaintiff having failed in both the courts below has filed the instant second appeal. Plaintiff is daughter of Manbhar. Proforma respondents no. 2 Regular Second Appeal No. 743 of 2008(O&M) -2- and 3 are daughters of Smt. Mana daughter of Manbhar. It is alleged by the plaintiff-appellant that Manbhar was in possession of the suit land measuring 1 kanal 5 marlas comprised of khasra no. 182 as gair marusi tenant and had constructed tin shed therein. He had no male issue. After his death, plaintiff and proforma respondents no. 2 and 3 inherited suit property which had also been gifted to them by Manbhar vide gift deed dated 23.8.1965. Defendant no. 1 has no concern with the suit property but defendant no. 1 wanted to interfere in the possession of the plaintiff over the suit property. Accordingly, plaintiff sought permanent injunction restraining defendant no. 1 from interfering in possession of the plaintiff over the suit property and from taking forcible possession thereof and from raising any construction therein. It was also prayed that if defendant no. 1 succeeds in taking forcible possession of the suit property during the pendency of the suit, then decree for possession be also passed. Defendant no. 1 contested the suit and denied plaint allegations. It was pleaded that Manbhar had adopted Parbhu Dayal as his son. After the death of Parbhu Dayal, his son Bhola Ram become owner of the suit property. Defendant no. 1 purchased 100 square yards out of the suit property from Bhola Ram vide agreement dated 20.1.1998 for ` 17,000/- and paid ` 16,500/- to Bhola Ram. Sale deed was to be executed within one year. Time for sale deed was further extended on 15.1.1999. Defendant no. 1 has constructed his house in the aforesaid land by spending huge amount and is owner in possession thereof. Plaintiff and proforma respondents are neither owners nor in possession of the suit property. Various other pleas were also raised. Regular Second Appeal No. 743 of 2008(O&M) -3- Learned Civil Judge (Junior Division), Mohindergarh vide judgment and decree dated 18.11.2004 dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed vide judgment and decree dated 22.8.2007 passed by learned Additional District Judge, Narnaul. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Defendant no. 1 proved order dated 23.4.1959 Ex. D2 passed by learned District Judge, Sangrur camp at Narnaul wherein parties to the said litigation i.e. Parbhu Dayal and Manbhar effected compromise. Manbhar accepted Parbhu Dayal as his adopted son. It was also agreed that Parbhu Dayal would be entitled to stay at the suit property and Manbhar would not be entitled to eject him. Said judgment had attained finality. Consequently, Parbhu Dayal was adopted son of Manbhar. Plaintiff and mother of proforma respondents no. 2 and 3 were residing at their matrimonial home and were not residing at Mohindergarh. Consequently, tenancy rights were not inherited either by plaintiff or proforma respondents no. 2 and 3 or their mother. After the death of Parbhu Dayal his son Bhola Ram came in possession of the suit property. Defendant no. 1 purchased 100 square yards from Bhola Ram out of the suit property and is proved to be in possession thereof. Bhola Ram DW4 has also supported the case of defendant no. 1 in this regard. It is proved from the plaintiff's own evidence that defendant no. 1 was in possession of the disputed portion of the suit property since before the filing of the suit. Ghanshyam PW1 appeared as attorney of the plaintiff. Regular Second Appeal No. 743 of 2008(O&M) -4- He stated that defendant no. 1 has constructed two rooms in the suit property. He also stated that defendant no. 1 had taken possession of the suit property forcibly and therefore, the instant suit had to be filed. This statement would depict that defendant no. 1 had taken possession of the suit property before filing of the suit which was filed on 25.6.1998. Thus, at the time of filing of the suit, plaintiff was not in possession of the suit property and it was falsely averred that the plaintiff was in possession of the suit property at the time of filing of the suit. Similar statement has been made by Mool Chand PW2 who in the year 2002 stated that defendant no. 1 was in possession of the suit property and he had constructed his residential house there 4/5 years ago. Statement of Mool Chand PW2 also corroborated the version of defendant no. 1 that he had come in possession of the disputed portion of the suit property in January, 1998 pursuant to agreement with Bhola Ram and has constructed his house there. Statement of Mool Chand would also thus depict that plaintiff was not in possession of the suit property at the time of filing of the suit. On the other hand, plaintiff is admittedly residing in Hanumangarh (Rajasthan) whereas suit property is situated at Mohindergarh in Haryana. Respondents no. 2 and 3 are also residents of Rewari. Thus, plaintiff and respondents no. 2 and 3 were not in possession of the suit property. On the other hand, Bhola Ram was in possession and thereafter defendant no. 1 came in possession of 100 square yards out of the suit property before filing of the suit. Consequently, suit for permanent injunction is not maintainable and the suit has been rightly dismissed by the courts below. It may be added that the plaintiff did not dare to step into Regular Second Appeal No. 743 of 2008(O&M) -5- witness box. Examination of Ghanshyam PW1 as attorney of the plaintiff is not sufficient because the facts which were in the knowledge of the plaintiff herself could be deposed by the plaintiff and not by her attorney. Adverse inference arises against the plaintiff for not appearing in the witness box without any explanation. Both the courts below after appreciating evidence have recorded concurrent finding against the plaintiff-appellant. The said finding is supported by the evidence on record and is based on cogent reasons recorded by the courts below. The said finding is not shown to be perverse or illegal warranting interference in second appeal. Lower appellate court is the final court of fact. No question of law much less substantial question of law arises for determination in the instant second appeal. For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L.N. Mittal ) October 04, 2010 Judge 'dalbir'