REGULAR SECOND APPEAL No.1626 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1626 of 2010 DATE OF DECISION: 23 rd MARCH, 2011 Municipal Council, Jind .... Appellant Versus Yoginder Pal .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Sanjay S. Chauhan, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Defendant Municipal Committee, Jind (now Municipal Council) has filed the instant second appeal having been unsuccessful in both the courts below. Respondent-plaintiff Yoginder Pal filed suit against defendant- appellant alleging that plaintiff's great grand father Jai Gopal purchased suit land and other land, depicted by green colour boundary in the site plan, from Maharaja of the then Jind State vide deed dated 20.06.1917. Now plaintiff and his mother and brother are owners in possession thereof except that a small portion out of it has been encroached upon by adjoining dharamshala. However, the defendant threatened to make street through the suit land depicted in red colour by letters A B C D E F, although defendant has no right, title or interest therein. Accordingly the plaintiff sought permanent injunction restraining the defendant from interfering in plaintiff's possession over the suit land and from raising any construction REGULAR SECOND APPEAL No.1626 OF 2010 -2- therein. The defendant's case is that the suit land is part and parcel of street meant for use by the public at large and it vests in the defendant Municipal Committee. Various other pleas were also raised. Learned Civil Judge (Senior Division), Jind vide judgment and decree dated 05.05.2008 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Jind vide judgment and decree dated 01.06.2009. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. There was previous litigation titled Dr. Prem and others versus Narati Devi and others. Narati Devi is mother of plaintiff-respondent herein. Defendant-herein was also party to the said suit. Vide judgment dated 08.08.2001 Exhibit P-4 passed in that suit, trial court held the plaintiff and his brother and mother to be owner in possession of the suit land. First appeals preferred by Dr. Prem etc. and by Municipal Committee in the said case were dismissed by the First Appellate Court vide judgment and decree Exhibit P-6 and Exhibit P-5. In view of said judgments and decree in the previous litigation, to which both the parties herein were also parties, it has rightly been held by the courts below that plaintiff is owner in possession of the suit land. Defendant's claim that suit land is part and parcel of street is barred by res judicata. Plaintiff's claim that he along with his brother and mother is owner in possession of the suit land has to be upheld in view of principle of res judicata. In addition to the aforesaid, the plaintiff has proved REGULAR SECOND APPEAL No.1626 OF 2010 -3- Conveyance Deed dated 20.06.1917 Exhibit P-2 and site plan Exhibit P-3 appended therewith, vide which suit land and other land was purchased by plaintiff's great grand father. Said site plan Exhibit P-3 matches with site plan Exhibit P-1 produced by the plaintiff with the plaint. In view of this evidence also, the plaintiff is proved to be owner in possession of the suit land along with other land as claimed by him. Learned counsel for the appellant contended that Conveyance Deed dated 201.06.1917 is not proved. The contention cannot be accepted. The said deed being more than 80 years old at the time of filing of the suit is per se admissible in evidence in view of Section 90 of the Evidence Act. Learned counsel for the appellant also contended that in suit filed by the plaintiff and his mother Narati Devi etc. against Shanti Devi, claim of the plaintiff regarding suit land was negatived up to this Court. The contention has been noticed simply to be rejected because there is not even an iota of material on record to substantiate the said plea. No judgment or decree sheet or any other document relating to alleged litigation has been produced in evidence. It would not be out of place to notice here with some significance that the defendant Municipal Committee is supposed to maintain the record of its properties including record of the streets vesting in it. However, no such record relating to the suit land has been produced and therefore, very strong adverse presumption arises against the defendant- appellant. For the reasons aforesaid, it is manifest that the concurrent finding recorded by the courts below in favour of the plaintiff-respondent is fully justified by the evidence on record and is supported by cogent reasons REGULAR SECOND APPEAL No.1626 OF 2010 -4- recorded by the lower courts. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or miss-appreciation of evidence. Consequently the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial of law, arises for determination in the instant second appeal. The appeal lacks any merit and is, therefore, dismissed in limine. (L. N. MITTAL) JUDGE 23rd March, 2011 'raj'