REGULAR SECOND APPEAL No.2156 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.2156 OF 2010 DATE OF DECISION: FEBRUARY 2, 2011 Vijay Singh & others .... Appellants Versus Durga Mandir Committee, Dharampur & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Anil Sharma, Advocate for Mr. Amit Jhanji, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) CM No.6562-C of 2010 The application is allowed and Annexures A-1 and A-2 are taken on record, subject to all just exceptions. CM No.6563-C of 2010 For reasons mentioned in the application, which is accompanied by the affidavit, delay of 19 days in refilling the appeal is condoned. Main Case Plaintiffs having failed in both the courts below are in second appeal. Plaintiffs No.1 to 4 and defendant No.8 are sons of Babu Ram, whereas plaintiff No.5 (appellant No.2) is widow of Babu Ram. Plaintiffs' case is that the disputed Durga Mandir situated in village Dharampur fell in Khana Shumari No.73 of the settlement of the year 1852 and it was then REGULAR SECOND APPEAL No.2156 OF 2010 -2- owned by Dullo Ram father of Babu Ram predecessor of plaintiffs and defendant No.8. After death of Dullo Ram, Babu Ram was in possession of the Mandir and was managing its affairs. After death of Babu Ram, plaintiffs and defendant No.8 being his heirs are owners of the Mandir in dispute and had been managing its affairs. However, interpolation has been made in ownership column of Khana Shumari Register. In settlement of the year 1884, the Mandir was renumbered as 312 and it was wrongly recorded to be in possession of the villagers. Defendant no.1 is a Committee, of which defendant No.2 to 7 are office bearers. They have illegally usurped the disputed Mandir, alleging the same to be of seven families of Parmar Rajput, although the Mandir belongs to only five families of plaintiffs No.1 to 4 and defendant No.8 Parmar Rajputs. Defendant No.1-Committee is unauthorized and illegal and has no authority to manage the affairs of the Mandir. However, defendants No.1 to 7 have usurped the Mandir unauthorizedly. Accordingly, plaintiffs sought declaration that plaintiffs and defendant No.8 are owners and worshippers of the Mandir and defendant No.1-Committee is illegal and without authority and defendant No.1 to 7 have no right to manage affairs of the Mandir or interfere in management and possession thereof by plaintiffs and defendant No.8. Plaintiffs also sought mandatory injunction directing defendants No.1 to 7 to handover management of the Mandir to plaintiffs and defendant No.8. Defendants contested the suit and broadly denied the plaint allegations. It was pleaded that defendant No.1 is a Registered body. Income of the Mandir is being utilized by seven member Committee of the Mandir for the benefit of the Mandir since the year 1934. The six families, who gave the disputed land to the Mandir, are mentioned in the constitution of defendant REGULAR SECOND APPEAL No.2156 OF 2010 -3- No.1-Committee. Babu Ram, predecessor of plaintiffs and defendant No.8, was Pujari (Priest) of the Mandir and after his death, defendant No.8 being his eldest son is Pujari of the Mandir. Plaintiffs have no right to manage the Mandir. Babu Ram had been signing the resolutions of defendant No.1- Committee as Pujari of Mandir. Entries in Khana Shumari Register of various settlements are correct. Defendant No.1-Committee is legal and valid. Plaintiffs have never been in possession of the Mandir. Various other pleas were also raised. Learned Civil Judge (Junior Division), Dasuya vide judgment and decree dated 05.05.2001 dismissed the plaintiffs' suit. First appeal preferred by plaintiffs No.1 and 5 only has been dismissed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 06.10.2009. Feeling aggrieved, all the five plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. There is no document to depict that plaintiffs are either owners or were ever in possession of the disputed Mandir. Similarly there is no document on record to depict that plaintiffs' predecessor Babu Ram or his predecessor Dullo Ram ever remained owner or in possession of the disputed Mandir. On the contrary, according to plaintiffs' own pleadings, since the settlement of the year 1884, the Mandir is recorded to be in possession of the villagers. The instant suit was filed on 14.09.1990. Thus entries depicting possession of the villagers over the Mandir continued unchallenged for over a century. Consequently there is no infirmity in the judgments of the courts below, non-suiting the plaintiffs. There is practically no reliable evidence to REGULAR SECOND APPEAL No.2156 OF 2010 -4- support their claim. Learned counsel for the appellants emphatically contended that plaintiffs' predecessor in interest Tika and his widow Anaro had mortgaged the disputed Mandir vide mortgage deeds dated 08.10.1910 and 14.10.1982 and the said mortgages were redeemed by plaintiffs' predecessor Dullo Ram. The contention is completely misconceived and untenable. No relationship of plaintiffs with Tikka and Anaro has been pleaded or proved. There is also no evidence on record to depict that the alleged mortgages were redeemed by plaintiffs' predecessor Dullo Ram. Consequently, the aforesaid contention is completely untenable being beyond pleadings and has also not been substantiated by any material on record. Learned counsel for the appellants also contended that alteration was made in Khana Shumari Register of settlement of the year 1852. However, this contention is also not substantiated by any material on record. From the record, it appears that the said Register is missing. On the contrary, as already noticed hereinbefore, in all subsequent settlements, the Mandir was recorded to be in possession of the villagers for over a century. Learned counsel for the appellants also contended that appellants in the lower appellate court had moved application Annexure A-1 for additional evidence, which has been dismissed by the lower appellate court vide order Annexure A-2. It was contended that the said additional evidence should have been allowed. The contention cannot be accepted. By way of additional evidence, the appellants wanted to examine handwriting expert to depict that signatures of Babu Ram on resolutions of defendant No.1- Committee did not tally with his standard signatures. It was also sought to be proved that defendant No.1-Committee has produced its constitution, which is REGULAR SECOND APPEAL No.2156 OF 2010 -5- different from the constitution obtained from the Registrar of Societies. However, proposed additional evidence would not in any manner depict that plaintiffs have any right, title or interest in the disputed Mandir. Consequently, application for proposed additional evidence has been rightly dismissed by the lower appellate court. There is concurrent finding by both the courts below against the plaintiffs/appellants. The said finding is based on proper analysis and appreciation of the evidence lead by the parties. Courts below have recorded detailed reasons in their elaborate judgments to non-suit the plaintiffs. Finding recorded by the courts below is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. On the contrary, fact of the lis depends on finding of fact. Lower appellate court is the final court of fact. Moreover, there is concurrent finding by both the courts, which is fully justified by the evidence on record and is supported by cogent reasons. There is, therefore, no merit in the instant second appeal, which is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 02.02.2011 'raj'