Regular Second Appeal No. 3729 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3729 of 2008 Date of decision: 27.08.2009 1. Harbans Lal s/o Titu Ram, 2. Balbir Singh @ Balbir Chand, s/o Prem Chand, through his general power of attorney Harbans Lal s/o Titu Ram. Both rs/o 109-EB-Nangal Township Tehsil Anandpur Sahib, District Ropar. ..... Appellants. Versus 1. Smt. Vidya Devi wd/o Shiv Singh, 2. Devinder Singh, 3. Narinder Singh sons of Shiv Singh, all rs/o village Hambewal, Tehsil Anandpur Sahib, District Ropar. 4. Dharinder son of Damodar Dass r/o Kiln Area Nangal Township, Tehsil Anandpur Sahib, District Ropar. 5. Pardeep Soni s/o Faquir Chand Sony r/o Opposite Kawaj Mandir, Nangal Nikku Road, Nangal, Tehsil Anandpur Sahib, District Ropar. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Amit Jain, Advocate for the appellants. Mr. Vijay Lath, Advocate with Mr. Naveen Sharma, Advocate for respondent nos. 1 to 4. Mr. Naveen Batra, Advocate for respondent no.5. Regular Second Appeal No. 3729 of 2008 2 Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 02.08.2008, rendered by the District Judge, Rupnagar, vide which it accepted the appeal and dismissed the suit of the plaintiffs, against the judgment and decree dated 17.08.2006, rendered by the Court of Additional Civil Judge (Senior Division), Anandpur Sahib. 2. The brief facts of the case, are that plaintiff no.2, (now appellant no.1) purchased land measuring 0 kanal 7 marlas and plaintiff no.1 (now appellant No.2), purchased land measuring 0 kanal 11 marlas out of the total land measuring 4 kanals 9 marlas comprising khasra no.1281, vide agreement to sell dated 12.08.1998, from Harbhajan Singh and Smt. Kamla Devi, who were the owners in possession of the same. The possession was handed over to the plaintiffs, aforesaid, at the time of purchase of the said property. It was Regular Second Appeal No. 3729 of 2008 3 stated that the plaintiffs, thus, became co- sharers in exclusive possession of the land, in dispute. It was further stated that the defendants, who had no concern with the same, tried to take forcible possession thereof, and raise illegal construction. It was further stated that the defendants were many a time, asked not to do so, but to no avail. On their final refusal, left with no alternative, a suit for permanent injunction was filed. 3. Defendant no.1, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable; that the plaintiffs had no locus standi to file the suit; and that the plaintiffs had not come to the Court with clean hands. It was stated that the land, in dispute, is rasta shar-e-am, which is being used by the defendants and general public. There was, thus, no question of sale thereof, in favour of the plaintiffs and delivery of possession of the same to them. Regular Second Appeal No. 3729 of 2008 4 It was further stated that the sale deed dated 22.04.1999,was merely a paper transaction. The remaining averments, contained in the plaint, were denied, being wrong. 3-A. Defendant nos. 2 and 3, contested the suit, by way of filing separate written statements, wherein, it was stated that khasra no.1281 wherefrom the plaintiffs allegedly purchased the land, is a shar-e-am rasta, being used by the general public. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiffs are co- sharers in possession of the suit land to the extent of 0 kanal 11 marlas and 0 kanal 7 marlas as fully detailed in the head note of the plaint? OPP 2- If issue no.1, is proved, whether the plaintiffs are entitled for permanent injunction as prayed for ?OPP 3- Whether the suit land is a public passage ?OPD Regular Second Appeal No. 3729 of 2008 5 4- Whether the suit of the plaintiffs is not maintainable in the eyes of law ? OPD 5- Whether the suit of the plaintiffs is bad for mis-joinder of necessary parties ?OPD 6- Whether the suit of the plaintiffs is bad for non-joinder of necessary parties ?OPD 7- Whether this Court has no jurisdiction to try and decide this suit ?OPD 8- Whether the plaintiffs are estopped by their own act, conduct, admission and acquiescence ?OPD 9- Whether the suit of the plaintiffs is also barred by time ?OPD 10- Relief.” 5. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit. 6. Feeling aggrieved, an appeal was preferred by the appellants/defendants, which was accepted by the District Judge, Rupnagar, vide its judgment and decree dated 02.08.2008. Regular Second Appeal No. 3729 of 2008 6 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed, by appellants/plaintiffs. 8. I have heard the Counsel for the parties, and have gone through and perused the evidence, carefully. 8-A. The following substantial questions of law, arise, in this appeal, for the determination of this Court:- “1. Whether the first Appellate Court mis-read and mis-appreciated the evidence and recorded a perverse finding that the property, in dispute, is a shar-e-am rasta, for the use of public at large and, thus, could not be sold by the defendants? 2. Whether the Ist Appellate Court illegally declined the injunction prayed for to the plaintiffs/ appellants, by making out a new case? 9. The Counsel for the appellants submitted that the trial Court was right in granting injunction. He further submitted that the first Appellate Court made out a new case, which was not pleaded by the parties, in the pleadings. He further submitted that the judgment and decree Regular Second Appeal No. 3729 of 2008 7 rendered by the first Appellate Court, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the respondents, submitted that there was a specific plea, in the written statement,taken up by the defendants/ respondents to the effect that the property, in dispute, was a shar-e-am rasta, which vested in the Gram Panchayat. He further submitted that, under these circumstances, the plaintiffs, if with closed eyes, purchased the property, from the vendors, who were not the owners, in possession, of the same, they will have to thank their own stars. He further submitted that the judgment and the decree of the first Appellate Court, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Regular Second Appeal No. 3729 of 2008 8 Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The only question, which fell for consideration, before the Courts below is as to whether khasra no.1281 measuring 4 kanals 9 marlas, out of which, the Regular Second Appeal No. 3729 of 2008 9 plaintiffs (now appellants) purchased the property, is Shar-e-am rasta, or belonged to the vendors. As per the revenue record, khasra no.1281 is recorded as gairmumkin rasta. Even the Collector passed order,Ex.D1, as is evident from para no.19 of the judgment of the first Appellate Court that the property, in dispute, is shar-e-am rasta, vested in Gram Panchayat, Hambewal. Since the property, in dispute, vested in the Gram Panchayat, being Shar-e- am rasta, sale in respect thereof, by the defendants, in favour of the plaintiffs, did not confer any right or title upon them. Even the Patwari and Field Kanungo examined by the plaintiffs as witnesses, in clear-cut-terms, stated that the property, in dispute, was passage/metalled road. The findings of fact, recorded by the first Appellate Court, that since the property in dispute, is the public passage vesting in the Gram Panchayat, the plaintiffs did not become the owners thereof, even if they purchased some portion of the same, from Regular Second Appeal No. 3729 of 2008 10 the persons, who did not have any right, or title therein; and as such, were not entitled to the injunction, prayed for, being based, on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The judgment and decree of the first Appellate Court, are liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the appellants. 12. For the reasons recorded above, the appeal being devoid of merit, must fail, and the same stands dismissed with costs. (Sham Sunder) 27.08.2009, Judge dinesh