RSA No.3638 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3638 of 2010 (O&M) Date of decision: July 5, 2011. Ajit Singh ... Appellant(s) v. Shyam Singh ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri V.K. Sandhir, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. C.M. No.10712-C of 2010 For the reasons stated in the application, delay 142 days in re- filing the appeal is condoned. The application stands disposed of. C.M. No.10711-C of 2010 For the reasons stated in the application, delay of 1 day in filing the appeal is condoned. The application stands disposed of. R.S.A. No.3638 of 2010 Present regular second appeal has been preferred by the defendant. Plaintiff-respondent Sham Singh instituted a suit for permanent injunction restraining the defendant from interfering in his possession of the land, description of which was given in the head note of the plaint and not RSA No.3638 of 2010 -: 2 :- to dispossess him forcibly therefrom. In nutshell, the case as set out by the plaintiff in the suit is that the disputed house, possessed by him, was within the red line and is ancestral. He had constructed two rooms and a kitchen. He had also installed a hand-pump. Boundary wall of the entire property was also raised. Besides this, plaintiff had planted trees of Tahli, Dharaike, Gauva, Lasurhi and jamun. Plaintiff was enjoying peaceful possession of the property and the defendant has no concern with the same. In support of his averment, he has proved on record site plan, ration card, voter card and a voter list. A grievance was made that the defendant, without any justifiable reasons, was threatening to dispossess the plaintiff. Upon notice, defendant filed a written statement and contested the claim of the plaintiff, denied his possession over the house in dispute. Plaintiff had neither given any khasra number nor any description of the property. The property is situated inside phirni (circular road). It was also stated that the plaintiff along with his family was residing in the farm house outside the village. Precisely put, appellant-defendant disputed the ownership and possession of the plaintiff over the property and claimed himself to be owner in possession thereof as he had purchased vide a sale deed Ex.D1 and entered in revenue record. After completion of the pleadings, the trial court had drawn the following issues:- 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has got no locus standi to file the RSA No.3638 of 2010 -: 3 :- present suit? OPD 4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 6. Whether the plaintiff is entitled to injunction as prayed for? OPD 7. Relief. After adducing oral as well as documentary evidence, the learned trial court gave its findings qua issue No.1 that the plaintiff has proved his possession over the suit property but has failed to prove his ownership. It will be apposite here to reproduce the following finding returned by the trial court:- “... On the other hand, plaintiff has been able to prove that he is in possession of the suit house. But at the same time, it is also true that the plaintiff has not produced any title deeds or the evidence of family settlement in his favour to prove his ownership because there is no address given in the ration card Ex.P2, voter list Ex.P3, Voter Card Ex.P4, except for this village and parentage in Ex.P2 and Ex.P3 and site plan is not a document of title. Thus, he failed to prove his ownership in the suit house. Accordingly, the issue is partly decided in favour of the plaintiff and partly against the plaintiff.” All other issues were consequently decided in favour of the plaintiff and the suit was decreed in his favour. Defendant-appellant was restrained to dispossess him forcibly, except in due course of law. RSA No.3638 of 2010 -: 4 :- Aggrieved against the same, defendant filed an appeal. The learned lower appellate court after hearing learned counsel for the parties and going through oral as well as documentary evidence brought on record and considering the case law cited by the parties, affirmed the findings given by the trial court and held that even though the appellant-defendant is owner of the suit property but the plaintiff-respondent is in possession of the same. Therefore, he can only be dispossessed by following due process of law. It will be pertinent to note the observations made by the lower appellate court, as under:- “In my view, the appellant/defendant proved his ownership of khasra nos.237 and 238 as per copy of jamabandi Ex.D3 for the year 2000-2001 and Ex.D4 for the year 2005-06. Ajit Singh has got the same from Sewa Singh. However the oral and documentary evidence on record shows that the house in dispute as shown in the site plan is in possession of respondent/plaintiff Sham Singh. The evidence including the report of Local Commissioner Ex.P6 shows that a passage leads to the house of Sham Singh through khasra nos.237 and 238. The Local Commissioner has reported the possession of Sham Singh over 13x5 = 65 sq. karms out of above said khasra numbers in possession of Sham Singh. House of Sham Singh which starts beyond the boundary of khasra no.238 is within the Lal Lakir (abadi area) of village Makhi Kalan. Possession of the respondent/plaintiff having been proved over the property in dispute, he was entitled to protect his possession except in due course of law. ..” RSA No.3638 of 2010 -: 5 :- Shri V.K. Sandhir, Counsel appearing for the appellant, has formulated following as substantial questions of law for consideration of this Court;- a) Whether the courts below were justified in granting injunction after holding that the appellant-defendant is owner of the property? b) Whether the courts below have misread the evidence in returning the finding that plaintiff respondent is in possession of the property and thereby acted perversely? After hearing learned Counsel for the appellant, I am of the opinion that there seems to be no illegality or infirmity in the well reasoned findings given by both the courts below qua possession of the plaintiff-respondent and the ownership of the appellant-defendant over the suit property. I affirm the same. Even otherwise, this Court in regular second appeal shall refrain from re-appreciating and doing re-appraisal of the evidence. Once both the courts below have held that the plaintiff- respondent is in possession of the property, mere ownership of the appellant-defendant is not sufficient to decline relief to the plaintiff respondent that he should not be dispossessed except in due course of law. Thus, proposed substantial questions of law, in no way, arise in the present appeal and have no force to dilute the concurrent finding of fact returned by both the courts below. Hence, the present appeal is dismissed in limine. [Kanwaljit Singh Ahluwalia] July 5, 2011. Judge kadyan