RSA No.2608 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2608 of 2008 (O&M) Date of Decision:28.01.2009 Raj Pal & Ors. ....appellants Versus Mewa Singh & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Shailender Kashyap,Advocate for the appellants **** RAKESH KUMAR GARG J. CM No.1209-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of 13 days in filing the application for restoration of the appeal which was dismissed on 09.12.2008. For the reasons mentioned in the application, the delay of 13 days in filing this application is condoned. CM disposed of. CM No.1210-C of 2009 For the reasons mentioned in the application, the order dated 09.12.2008 is recalled and the appeal is restored to its original number. CM disposed of. CM No.7632-C of 2008 For the reasons mentioned in the application delay of 486 days in refiling the appeal is condoned. CM disposed of. RSA No.2608 of 2008 2 RSA No.2608 of 2008 This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal of the defendant- respondents has been allowed and the judgment and decree of the trial Court has been set aside resulting into dismissal of the suit filed by the plaintiff-appellant. The suit for permanent injunction was filed by the appellant against the defendants-respondents alleging that plaintiff-appellant is owner in possession of the property in dispute which was purchased by him from Jagjit Singh, Gurbhagat Singh sons of Sunder Singh s/o Daya Ram resident of village Nurpur for a sale consideration of Rs.3000/- vide sale deed dated 04.03.1975. Since the date of its purchase the plaintiff was in possession of the suit property as owner thereof. The defendants have got no right, title or interest in the suit property. They are trying to encroach upon the property in suit forcibly and illegally. This intention of the defendants became clear when they tried to dig out the foundation of the property in dispute in order to encroach upon the same, but due to timely intervention of the plaintiff and some other respectables of the village, they could not succeed in their evil design. It was further pleaded that he requested many times to the defendants to admit his claim but the defendants did not pay any heed to his request. Hence the suit with a prayer for grant of decree for permanent injunction restraining the defendants from interfering in any manner whatsoever in the lawful and peaceful possession of the plaintiff over the house in dispute was filed. Upon notice, the defendants appeared and filed their separate but similar written statements controverting all the assertions mentioned in the plaint. It was submitted by the defendants that they have no concern with house alleged to have been purchased by the plaintiff and RSA No.2608 of 2008 3 the suit of the plaintiff was false and frivolous which was filed with the motive of harassing the defendants. The house consisting of two rooms allegedly purchased by the plaintiff is in existence and they have no concern with the aforesaid house. Therefore the question of digging its foundation from inside the rooms does not arise, at all. The trial Court on the basis of the facts and the written statement, and the admission of the defendants that they have no concern with the house which was purchased by the plaintiff, held that plaintiff had succeeded in proving that he is entitled for permanent injunction as prayed. Feeling aggrieved from the aforesaid judgment and decree of the trial Court defendants filed an appeal contending that the plaintiff- appellant had failed to prove the allegations of attempt of encroachment over his house by the act of digging of the foundations of his house and therefore he has no right to seek any injunction order against the defendant-respondents. The Lower Appellate Court accepted the appeal and dismissed the suit of plaintiff-respondents. Still not satisfied, the plaintiff has filed the instant appeal in this Court challenging the judgment and decree of the Lower Appellate Court. I have heard learned counsel for the appellants. The Lower Appellate Court on appreciation of evidence recorded a concurrent finding of fact that the plaintiff had failed to prove the allegations of attempt of encroachment over his house by the defendants- respondents. The pleaded case of the appellants is that respondents had tried to dig out the foundation of the property in dispute in order to encroach upon the same. However, there is no evidence on record to prove the allegations of attempt of encroachment over the house of the appellant by the respondents by digging out the foundations of his house. A finding of fact was recorded that plaintiff had not led any evidence that RSA No.2608 of 2008 4 defendants had ever entered his house and tried to demolish or dig out the foundations of his house. Plaintiff-appellant was supposed to prove his case which he had miserably failed. Consequently, the Lower Appellate Court rightly held that he had no right to seek any injunction order against the defendant-respondents. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 28.01.2009 neenu