Regular Second Appeal No.538 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.538 of 2009 (O&M) Date of Decision:-21.7.2011 Surinder Singh ---Appellant Versus Sukhwinder Singh and others ---Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Harsh Bunger, Advocate for the appellant. Mr.Tribhuwan Singla, Advocate for respondent Nos.1 to 3 & 5. M ehinder S ingh S ullar , J. (Oral) Tersenessly, the facts, which require to be noticed for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, are that Surinder Singh son of Dalip Singh appellant-plaintiff (for brevity “the plaintiff”) filed the suit for a decree of declaration to the effect that he and his younger brother Harwinder Singh are owners and in possession, to the extent of 5/8 share in the land measuring 18 kanals 7 marlas, situated in the area of village Sidhupur, Tehsil Shahkot, District Jalandhar and the rapat roznamacha, bearing No. 66 dated 12.10.1996 is null, void and is a paper transaction, with a consequential relief of permanent injunction, restraining Sukhwinder Singh and others respondent-defendants (for short “the defendants”) from alienating, or dispossessing the plaintiff from, the land in dispute. 2. The case set up by the plaintiff, in brief in so far as relevant, was that he and his younger brother Harwinder Singh were the owners and in possession of land measuring 18 kanals 7 marlas, while Surinder Singh was owner to the extent of 1/8 share. Assa Singh and Bagga Singh were owners to the extent of ¼ share. It Regular Second Appeal No.538 of 2009 (O&M) -2- was claimed that at the instance of Sucha Singh, Harbhajan Singh approached the plaintiff, for sale of shares of Sunder Singh, Assa Singh and Bagga Singh. They (Sunder Singh, Assa Singh and Bagga Singh) executed an agreement dated 13.11.1995 to sell their land for a total consideration of ` 3,70,000/- and they received the amount of ` 20,000/- as earnest money from the plaintiff. In the wake of inquiry, plaintiff came to know that no such persons of the names of Sunder Singh, Assa Singh and Bagga Singh lived in that village and the persons, who signed the agreement, were their legal heirs. Subsequently, they were stated to have sold the land in dispute to defendant Nos.1 to 3. Ultimately, defendant Nos.1 to 3, through Sucha Singh, deposited the amount of plaintiff in the bank in the name of Harbhajan Singh, who withdrew and paid the same to him (plaintiff) (except ` 20,000/-). It was alleged that the defendants, under undue influence and pressure, obtained the signatures of plaintiff, got entered rapat roznamcha No.66 dated 12.10.1996 and got corrected the khasra girdawari in favour of the vendees. The rapat roznamcha was claimed to be arbitrary and illegal. On the basis of aforesaid allegations, the plaintiff filed the suit for declaration and permanent injunction against the defendants, in the matter described hereinabove. 3. As defendant Nos.1 to 3 did not appear, therefore, ex parte proceedings were ordered against them. However, defendant Nos.4 to 6 contested the suit and filed their separate written statements, inter-alia pleading certain preliminary objections of, maintainability of the suit, misjoinder and nonjoinder of necessary parties, cause of action and locus standi of the plaintiff. On merits, they claimed that defendant No.4 purchased the land measuring 6 kanals 18 marlas from his vendors, by means of sale deed dated 18.6.1996, but the revenue record was wrongly recorded in the name of plaintiff. Subsequently, plaintiff himself sworn his affidavit and entries were got corrected, vide rapat roznamacha bearing No.66 dated 12.10.1996. Thus, he is owner and in possession of his purchased portion of the land in dispute. The plaintiff himself admitted his possession and he Regular Second Appeal No.538 of 2009 (O&M) -3- was present alongwith other respectable persons at the time of correction of the entries. The story of payment/return of the amount was stated to have been concocted by the plaintiff. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiff filed the replications. In the wake of pleadings of the parties, the trial Court framed the necessary issues depicted in its judgment, for adjudication of the case. 5. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 6. The trial Court, after taking into consideration the entire material on record, partly decreed the suit of the plaintiff, by virtue of judgment and decree dated 26.7.2006. 7. Aggrieved by the decision of the trial Court, Sukhwinder Singh son of Jit Singh (defendant No.4) filed the appeal, which was partly accepted by the 1st Appellate Court, by way of impugned judgment and decree dated 19.11.2008. 8. The appellant-plaintiff Surinder Singh did not feel satisfied with the impugned judgment and decree of the 1st Appellate Court and preferred the present appeal. That is how I am seized of the matter. 9 After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 10. Ex facie, the argument of the learned counsel that since the appellant-plaintiff is proved to be in possession of the suit land, so, the Ist Appellate Court ought to have granted the decree of permanent injunction, sans merit. 11. As is evident from the record that plaintiff and his younger brother Regular Second Appeal No.538 of 2009 (O&M) -4- are owners and in possession to the extent of 5/8 share in the land measuring 18 kanals 7 marlas, but he (plaintiff) has miserably failed to prove his exclusive possession over the entire land, rather he is co-owner in the suit land. The concocted story put forth by the plaintiff that the defendants obtained his affidavit under undue influence and the rapat roznamcha No.66 is illegal, has been considered and duly disbelieved by the Ist appellate Court. Since the plaintiff has failed to prove his exclusive possession over the suit land, so, to me, the first appellate Court has rightly negatived his claim in this regard, vide impugned judgment dated 19.11.2008, the operative part of which is (paras 29 to 32) as under:- “As regards the injunction relief claimed by the plaintiff/respondent restraining defendant/appellant from interfering in his possession is concerned, as discussed above, the plaintiff/respondent is co-owner alongwith his brother to the extent of 5/8 share and Sukhwinder Singh, defendant no.4/appellant is co-sharer in the remaining property. It is, settled law that a co-sharer is not entitled to injunction against other co- sharer unless and until he proves to be in exclusive possession. The khasra girdawari has already been corrected in favour of defendant no.4/appellant with respect to the property purchased by him. The plaintiff/respondent has failed to prove that he is in exclusive possession of the land measuring 18K-7M and the learned lower court has committed an error by granting the decree for permanent injunction restraining defendant no.1/appellant from interfering in possession of the plaintiff/respondent. Therefore, the decree passed by the learned lower court qua the relief of injunction from interfering in possession is reversed. Another relief has been sought by the plaintiff/respondent restraining the defendant from alienating the suit property is concerned the learned lower court has again decreed the suit for injunction restraining the defendants from alienating the entire property despite the fact that admittedly defendant no.4/appellant is co-owner of the land measuring 6K- 18M on the basis of sale deed, therefore, this relief is modified and the defendant no.4/appellant is restrained from alienating more than his share. In the light of the above discussion, the appeal filed by defendant no.4/appellant qua the relief of declaration that plaintiff and his brother Regular Second Appeal No.538 of 2009 (O&M) -5- are co-owner in joint possession to the extent of 5/8 share in the land measuring 18K-7M is dismissed whereas suit of the plaintiff for permanent injunction restraining the defendants from interfering in his possession over the property in question is dismissed and appeal qua this relief is accepted, however, the appeal qua injunction restraining the defendant from alienating the suit property is modified to the extent that defendant no/4/appellant is restrained from alienating more than his share whereas remaining defendants/respondents who have no concern with the property in question are restrained from alienating the property. In the light of the above discussion, the appeal filed by Sukhwinder Singh, defendant no.4/appellant is partly accepted and partly dismissed. Parties are left to bear their own costs, whereas the appeal filed by Surinder Singh being devoid of any merits is dismissed. Copy of the judgment be placed on the file of connected appeal. Record of the lower court alongwith copy of this judgment be sent to the learned lower court and this file be consigned to the record room.” 12. Meaning thereby, the Ist appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having analyzed the admissible evidence in relation to the pleadings of the parties, the first Appellate Court has recorded the above- mentioned findings of fact. Such findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Ist appellate Court, in this behalf. 13. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Ist appellate Court in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant connection, have already been duly considered and dealt with by the Ist appellate Court. 14. In this manner, the entire case revolves around the re-appreciation Regular Second Appeal No.538 of 2009 (O&M) -6- and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgment and decree of the Ist appellate Court, in the obtaining circumstances of the present case. 15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 16. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 21.7.2011 Judge AS Whether to be referred to reporter?Yes/No