RSA No. 2233 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2233 of 2005 Date of Decision: 01.12.09 Bhim Singh son of Sh. Ram Dhari son of Sh. Net Ram, r/o village Uchani, Tehsil and District Karnal. ... Appellant Versus Jasbir Singh Dhawan son of Sh. Gian Chand Dhawan, r/o Shop No. 355, Ram Lila Ground, Railway Road, Karnal. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. J.R. Mittal, Senior Advocate, with Mr. Kashmir Singh, Advocate, for the appellant. Mr. P.N. Makhani, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed against the judgement and decree, dated 07.06.05, rendered by the Court of Additional District Judge, Karnal, vide which, it accepted the appeal, against the judgement and decree, dated 04.12.03, rendered by the Court of Additional Civil Judge (Senior Division), Karnal, and dismissed the suit of the plaintiff, in toto. 2. The facts, in brief, are that, Bhim Singh, plaintiff, claimed himself, to be in possession of shop No. 356, situated in the Ram Lila RSA No. 2233 of 2005 2 Ground, at Railway Road, Karnal, as tenant. It was stated that, at the back side of the shop, in question, there was site, marked as ABCD, shown in the site plan. It was further stated that the site, marked as ABCD, is situated within the limits of Ram Lila Ground, Karnal, and, as such, formed the part and parcel of the shop, in question. It was further stated that the plaintiff, was using the site, in question, marked by words ABCD, as a store, for storing bricks, rafters, cycle, other implements etc. It was further stated that, prior to the plaintiff, Ram Dhari, his father, was in possession of the shop, as also the site, in dispute, marked by words ABCD. It was further stated that, on the eastern side of shop No. 356, there is shop No. 355, having a vacant site, at its back side, in which, the defendant, was inducted, as a tenant. It was further stated that previously, shop No. 355 alongwith the vacant site, at its back side, was in possession of one Des Raj, who tried to encroach upon the site, in dispute, marked by words ABCD. It was further stated that, thereafter, the plaintiff, filed a suit for permanent injunction, against Des Raj, which was dismissed as withdrawn, in the month of September, 1973, on his (Des Raj's) assurance, that he would not make an encroachment upon the site, in dispute, marked by words ABCD. It was further stated that Des Raj, delivered the possession of shop No. 355, alongwith vacant site, at its back, to Jasbir Singh, defendant, who was trying to encroach upon the site, in dispute, marked by words ABCD. It was further stated that the site, in dispute, marked by words ABCD, has been in possession of the plaintiff, for the last 30 years, since the time of his father. It was further stated that the RSA No. 2233 of 2005 3 defendant, had got no right, title or interest, in respect of the site, in dispute, marked by words ABCD. It was further stated that there was a brick wall, in between the shops of the plaintiff and the defendant. However, the defendant, tried to encroach upon the site, in dispute, marked by words ABCD, forcibly and illegally, on 02.03.92, but his attempt, was foiled. The defendant, was many a time asked, to refrain from his nefarious designs, but to no avail. Ultimately, a suit for permanent injunction, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the plaintiff, had got no locus-standi and cause of action, to file the suit; and that the suit was bad for mis-joinder and non-joinder of necessary parties. It was stated that Rohit Dhawan son of the defendant, was in possession of the site, in dispute, marked by words ABCD, as tenant of Shri Ram Lila Sabha (Registered) Karnal, on payment of monthly rental of Rs. 700/-, vide rent deed dated 01.01.92. It was denied that the plaintiff, was in possession of shop No. 356, as tenant. It was further denied that the site, in dispute, marked by words ABCD, was a part and parcel of shop No. 356. It was further stated that, no site plan, had been supplied, to the defendant. It was further stated that, on the one hand, the plaintiff, was claiming himself to be a tenant, in the shop, in question, whereas, on the other hand, he has been claiming his possession, over the site, in dispute, marked by words ABCD, for the last 30 years. It was further stated that the plaintiff, had nothing to do with the site, in dispute, marked by words RSA No. 2233 of 2005 4 ABCD, which was, in fact, in possession of Rohit Dhawan. It was further stated that, since Rohit Dhawan, was in possession of the site, in dispute, marked by words ABCD, as tenant, the question of forcible encroachment of the same by him, did not at all arise. It was further stated that the plaintiff, had made up a cock and bull story, just with a view to usurp the site, in dispute, marked by words ABCD. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the portion shown as mark ABCD, in the site plan, attached with the plaint is the part and parcel of the shop No. 356, as alleged? OPP (ii) Whether the plaintiff is in possession of portion shown as mark ABCD as a tenant, as alleged, if so, to what effect? OPP (iii) Whether the plaintiff has no cause of action to file the present suit? OPD (iv) Whether the plaintiff has no locus standi to file and maintain the present suit? OPD (v) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the defendant/appellant, which was accepted, by the Court of Additional District Judge, Karnal, vide judgement and decree dated 07.06.05. RSA No. 2233 of 2005 5 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, that the plaintiff/appellant, was not in possession of the site, in dispute, marked by words ABCD, and, as such, was not entitled to the injunction prayed for? 10. The Counsel for the appellant, submitted that the first Appellate Court, did not properly read and duly appreciate the evidence, produced, on record, and, as such, recorded perverse findings, that the plaintiff, was not in possession of the property, in dispute. He further submitted that sufficient cogent and convincing evidence, was produced, on record, that the plaintiff/appellant, was in possession of the site, in dispute, and, that the document creating tenancy, in favour of Rohit Dhawan, was forged and fabricated. He further submitted that sufficient evidence, was also led, that Rohit Dhawan, was not in possession of the property, in dispute, but the first Appellate Court, on flimsy grounds, held his possession, in respect of the said property. He further submitted that the judgement and decree of the first Appellate Court, being illegal, are liable to be set aside. 11. On the other hand, the Counsel for the respondent, RSA No. 2233 of 2005 6 submitted that, it was for the plaintiff/appellant, to stand, on his own legs, by producing cogent and convincing evidence, that he was in possession of the site, in dispute, at the time of filing the suit. He further submitted that the evidence, produced by the plaintiff, was rightly held, to be not reliable, by the first Appellate Court. He further submitted that, on the other hand, sufficient evidence, was led, that it was the son of the defendant, who was in possession of the site, in dispute. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. 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 judgements of the Courts below, is confined only to the hearing of substantial questions of law. It is settled principle of law, that the person, who RSA No. 2233 of 2005 7 claims, that he is in possession of the property, in dispute, at a particular time, is required, to prove the same, by leading cogent and convincing evidence. It was proved, from the evidence, on the record, that Ram Lila Sabha, at the relevant time, was the owner of the property, in dispute. The property, in dispute, is a vacant site. The plaintiff, claimed himself, to be in possession thereof, as a tenant. The property, in dispute, shown by letters ABCD, is on the back side of shop No. 356. The plaintiff, claimed that, he had been in possession of the property, in dispute, for the last 30 years, since the time of his father. The date of tenancy, in favour of the plaintiff, or his father, was not proved. It was not disclosed, in the plaint, as to who was the owner/land-lord of the property, in dispute. The date of execution of the rent note, if any, in favour of the plaintiff or his father was not proved. Bhim Singh, plaintiff, when appeared, as PW1, stated that, he had been in possession of the property, in dispute, for the last 25 years, owned by Ram Lila Sabha. Bhim Sain, plaintiff (PW1) admitted that the site in dispute was earlier in possession of Satinder Jit Singh as a tenant. He further admitted that Satinder Jit Singh when left the site, he handed over the possession to him and the rent note in favour of Satinder Jit Singh was also transferred, in his name. No evidence, was produced, on the record, as to how, Satinder Jit Singh, was competent to transfer the tenancy rights, in favour of the plaintiff or his father. That rent note, was not brought, on record, which could be said to be the most material document, to prove the tenancy, in favour of the father of the plaintiff or the plaintiff. Ram Dhari, father of the plaintiff, RSA No. 2233 of 2005 8 appeared, as PW4, who stated that Ram Lila Sabha, was the owner of the property, in dispute. He further stated that Satinder Jit Singh, constructed the shop, and rented out, to him @ Rs. 20/- per month. Bhim Singh, PW1, admitted that the property, in dispute, was without roof. Parveen Dayal, Advocate, was appointed, as Local Commissioner, vide order dated 30.03.92, to report about the existing state of affairs, at the spot. His report, dated 01.04.92, alongwith the site plan, prepared by him, was placed, on file. The Local Commissioner, found the wall of the adjoining shop of Jagdish Dhawan, on the western side, and, Jasbir Singh Dhawan, defendant, on the eastern side of the property, in dispute. There was, however, no wall, on the northern side of the property, in dispute, but only loose mixed bricks, were lying upto the height of 6 ft., on the northern side. The Local Commissioner, also reported, that there was only a semi new door about 4” x 2 ½”, in the wall of the plaintiff's shops, for ingress and outgress, to the property, in dispute. The report of the Local Commissioner, therefore, clearly negatived the stand of the plaintiff that he was a tenant of the property, in dispute. From his report, it was, thus, established that the plaintiff, made an attempt, to encroach upon the property, in dispute, shown by letters ABCD. In the plaint itself, the plaintiff, stated that, earlier Civil Suit No. 203/74, titled as 'Ram Dhari Vs. Des Raj', was filed. The site plan of shop No. 356 and disputed portion, shown by letters ABCD, was proved, as P2. Copy of the plaint, is P1. In P2, the area of the shop, was given as 10 x 10 sq. ft., whereas, the area of the property, in dispute, is given to be 10 x 9 sq. ft. The area of portion of ABCD, RSA No. 2233 of 2005 9 given in site plan P2 of the earlier suit, therefore, did not tally with the area of the property, in dispute, given in site plan PW5/A, attached with the plaint of the present suit. This clearly showed, that portion ABCD, was not a part and parcel of shop No. 356. An attempt, was made earlier, by the predecessor-in-interest of the plaintiff, and, thereafter, by the plaintiff, to usurp the same. In these circumstances, Satinder Jit Singh, could be said, to be the most important link, to prove, as to who was the owner of the property, in dispute, and, from when he had taken the property in dispute and to whom he surrendered the tenancy. Satinder Jit Singh, appeared, as DW1. He proved receipt D1, issued by Ram Lila Sabha, in his favour. He stated that, on 31.12.91, he delivered the possession of the site ABCD, in dispute, to Rohit Dhawan, on receiving the payment of Rs. 10,000/-, through cheque, vide receipt D2. He also stated that Rohit Dhawan, was in possession of the property, in dispute, as tenant, under Ram Lila Sabha, and, had been paying rent, to Ram Lila Sabha. He in categorical terms, stated that neither Ram Dhari, father of the plaintiff, nor the plaintiff, ever remained in possession of the portion, shown by words ABCD, in dispute. Pyare Lal Sharma, DW4, is the Manager of Ram Lila Sabha. He stated that previously Satinder Jit Singh, was in possession of the property, in dispute, as a tenant under Ram Lila Sabha, on payment of rent, and, proved receipt D1. He further stated that, Rohit Dhawan, was in possession of the property, in dispute, under Ram Lila Sabha, as a tenant, vide rent note DW2/A. He also stated that the site plan DW3/A, is a part and parcel of rent note DW2/A. From the statements of Satinder Jit Singh, DW1, and RSA No. 2233 of 2005 10 Pyare Lal Sharma, DW4, Manager of Ram Lila Sabha, it was proved, that the property, in dispute, is not a part and parcel of shop No. 356. Neither the father of the plaintiff, nor he ever came into possession of the same, as a tenant. No doubt, a plea was taken by the plaintiff that PW1/A, PW9/B and PW9/C, relating to the tenancy, in favour of Rohit Dhawan, were forged and fabricated documents. It was for the plaintiff, to stand on his own legs. He could not find faults with the case of the defendant. Rohit Dhawan, was not made a party, to the suit, and, therefore, question of his examination, by the defendant, did not at all arise. In the absence of his statement, on oath, it could not be said, that the documents aforesaid were forged. The earlier suit, filed by the father of the plaintiff, bearing No. 203/74, in respect of the property, in dispute, as stated above was dismissed. No evidence, was produced, that Des Raj, ever remained, as tenant, in the property, in dispute, under Ram Lila Sabha. The first Appellate Court, also thoroughly scrutinized the remaining evidence, produced by the parties, in its proper perspective. No fault can be found with such scrutiny of evidence by the first Appellate Court. The first Appellate Court, was, thus, right in holding, that the plaintiff, was not in possession of the property, in dispute, as a tenant, but, on the other hand, it was Rohit Dhawan son of the defendant, who was in possession of the property, in dispute, shown by letters ABCD, as a tenant, under Ram Lila Sabha. The first Appellate Court, was also right, in holding, that Rohit Dhawan, would be entitled to raise a wall, on the southern side of the property, in dispute, shown by letters ABCD, thereby closing the out-let from shop RSA No. 2233 of 2005 11 No. 356, towards same (property in dispute). 13. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgement and decree of the first Appellate Court, are, thus, liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. The substantial question of law, depicted above, is answered, against the appellant. 15. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 01.12.2009 (SHAM SUNDER) Amodh JUDGE