Regular Second Appeal No. 3304 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3304 of 2008 Date of decision : August 17, 2010 Sobha Ram ....Appellant versus Sadhu Ram ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ashok Aggarwal, Advocate, for the appellant Mr. Manoj Makkar, Advocate, for the respondent L.N. Mittal, J. (Oral) Plaintiff Sobha Ram having lost in both the courts below has filed the instant second appeal. Appellant filed suit against Sadhu Ram defendant for permanent injunction alleging that the appellant-plaintiff is in peaceful possession of the suit plot and has been using it for tethering cattle, storing wood, dung cakes etc. and has also planted trees. The defendant is bent upon to dispossess the plaintiff from the disputed plot. Accordingly, plaintiff sought permanent injunction restraining the defendant from interfering in peaceful possession of the plaintiff over the suit plot. The defendant, inter alia, pleaded that he has taken physical Regular Second Appeal No. 3304 of 2008 -2- possession of the suit plot on 23.4.2001 in execution of partition decree passed in civil suit no. 395 dated 15.6.1984 titled Mahabir Singh etc. versus Pehlad etc. by filing execution petition. The plaintiff is not in possession of the suit plot. Plaintiff has stated wrong boundaries of the suit plot which has boundaries as mentioned in written statement. Various other pleas were also raised. Learned Civil Judge (Junior Division), Bahadurgarh vide judgment and decree dated 2.11.2004 dismissed plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Jhajjar vide judgment and decree dated 31.7.2008. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that the defendant has claimed different plot and not the suit plot and the boundaries of the suit plot claimed by the plaintiff are different from the boundaries of the plot claimed by the defendant. It was also contended that the plot of which possession was allegedly taken by the defendant through warrant of possession Ex. D1 is not the suit plot. Reference was also made to testimony of defendant's witness Hukam Chand DW1 who stated that the disputed plot is adjacent to the plots of which possession was taken by defendant Sadhu Ram, one Dhare and another person. It was also contended that Hukam Chand DW1 has admitted that there is heap of dung cakes of the plaintiff in the suit plot and the plaintiff also tethers his cattle there. Accordingly, learned counsel for the appellant contended that Regular Second Appeal No. 3304 of 2008 -3- plaintiff appellant is proved to be in possession of the suit plot and the courts below have misread and misappreciated the evidence. Learned counsel for the respondent, on the other hand, contended that defendant has taken possession of the suit plot through warrant of possession Ex. D1 and plaintiff is not in possession of the suit plot. I have carefully considered the rival contentions. All arguments on behalf of learned counsel for the appellant pertain to the weakness of the case of the defendant-respondent. However, even if it is assumed that the case of the defendant-respondent is not proved, it would not automatically entitle the appellant to decree for injunction unless the appellant proves that he is in possession of the suit plot. The appellant has, however, miserably failed to prove the same. There is statement of the plaintiff-appellant himself and another witness Rame PW2 examined by the plaintiff. These oral statements are not sufficient to prove that plaintiff is in possession of the suit plot. The plaintiff has not even alleged that as to how and when he came in possession of the suit plot or who delivered its possession to him. Mere tethering of cattle and placing of dung cakes by the plaintiff in suit plot as admitted by defendant's witness Hukam Chand would not tantamount to possession of the plaintiff on the suit plot. On the contrary Hukam Chand explained that since the suit plot adjoins house of the plaintiff, therefore, the plaintiff tethers his cattle there. By no means it would depict that the plaintiff is in possession of the suit plot. The plaintiff has to stand on his own legs. However, the plaintiff has miserably failed to prove his possession over the suit plot. Oral self Regular Second Appeal No. 3304 of 2008 -4- serving statement of the plaintiff supported by another witness is not sufficient to prove the possession of the plaintiff over the suit plot. It is not difficult for a party to procure one witness from the village who can support case of the party examining him. Oral evidence led by plaintiff is not sufficient to prove his possession over suit plot. Both the courts below have appreciated evidence and recorded concurrent finding of fact that the plaintiff is not proved to be in possession of the suit plot. The said finding cannot be said to be perverse or illegal so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. On the other hand, it is a case based on pure finding of fact. Lower appellate court is the final court of fact. The appeal is found to be without any merit and is accordingly dismissed. ( L.N. Mittal ) August 17, 2010 Judge 'dalbir'