RSA No. 1136 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1136 of 2009 Date of Decision: 05.08.2009 1. Gurmit Kaur (wife); 2. Rajinder Singh @ Sethi @ Birla Singh (son); 3. Sukhwinder Singh (son); 4. Chhinder Kaur @ Sukhwinder Kaur (daughter); (LRs of Lal Singh son of Badan Singh son of Mangta Singh, now deceased, r/o village Sirthala, Tehsil Khanna, District Ludhiana). ... Appellants Versus Rajinder Singh @ Joginder Singh son of Hira Singh son of Nagahia Khan r/o village Sirthala, Tehsil Payal, District Ludhiana. ...Caveator/Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Harcharan Singh Batth, Advocate, for the appellants. Ms. Monika Jalota, Advocate, for the caveator/respondent. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 15.12.2007, rendered by the Court of Additional Civil Judge (Senior Division), Khanna, vide which, it decreed the suit of the plaintiff, and judgement and decree dated 01.09.2008, rendered by the Court of RSA No. 1136 of 2009 2 Additional District Judge, Ludhiana, vide which, it dismissed the appeal. 2. The plaintiff claimed himself to be the owner in possession of the suit property. The brother of the plaintiff Labh Singh and his mother Gurdev Kaur, mortgaged the property i.e. 10B-9B to Smt. Surjit Kaur w/o Mohan Singh, r/o village Sirthala, Tehsil Payal, District Ludhiana, on 04.09.80, which was, later on, redeemed after paying the amount to said Surjit Kaur, on 02.07.82. The mutation was sanctioned, in favour of the plaintiff and his brother Labh Singh. The plaintiff alongwith his brother was in exclusive possession of the suit property. On 04.11.01, the defendants, ignoring the status quo order of the Court, alongwith their associates, illegally and forcibly, constructed a temporary water channel (khal) in the property, in dispute. It was stated that the defendants had no concern, right, title, or interest, in the property, in dispute. The defendants were many a time asked, to demolish the water channel (khal) constructed by them in the property of the plaintiff and desist from interfering into his possession. On their final refusal, left with no alternative, a suit for mandatory and permanent injunction was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiff, had no cause of action, to file the suit. It was stated that the khal flows through khasra Nos. 770, 771, 771/1 of the defendants, to the fields of Lal Singh, defendant, bearing khasra Nos. 623/624 M khewat No. 28, khatauni No. 41. It was further stated that the khal starts from bore (khasra No. 727) by crossing the passage, through the fields of the plaintiff, since the time of consolidation, which took place in the year 1955-56. It was further stated that the plaintiff attempted to demolish and damage the khal RSA No. 1136 of 2009 3 after filing the suit and obtained the order of status quo. It was further stated that the khal was repaired by Lal Singh, defendant. It was further stated that an application, under Order 39, Rule 2A of the Code of Civil Procedure, was filed by the plaintiff for violating the order of status quo. It was denied that the defendants ever acted illegally. It was further stated that the plaintiff took advantage of wrong revenue record. It was denied that the plaintiff was in possession of the suit property. It was further stated that on the night of 29.10.01, the plaintiff alongwith other persons caused serious damage to the khal with tractor, as a result whereof, Sukhwinder Singh, defendant, moved an application, in Police Station Payal, on 30.10.01. However, on 30.10.01, the plaintiff and his accomplices, tendered a written apology, before the Gram Panchayat, and other respectables. It was further stated that after the damage to the khal by the plaintiff, the same was repaired by the defendants. The remaining averments were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether plaintiff is entitled to permanent injunction as prayed for? OPP (ii) Whether suit is not maintainable? OPD (iii) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP (iv) 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 defendants/appellants, which was dismissed by the Court of Additional RSA No. 1136 of 2009 4 District Judge, Ludhiana, vide judgement and decree dated 01.09.2008. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the defendants/appellants, submitted that the water channel (khal), had been, in existence, since long, and had not been reconstructed by the defendants/appellants. He further submitted that, in fact, the plaintiff/respondent, must have demolished the water course, for the purpose of showing to the Local Commissioner. He further submitted that, even the evidence, produced by the defendants/appellants, was not discussed by the Courts below, as a result whereof, they illegally decreed the suit of the plaintiff/respondent. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the caveator/respondent, submitted that the Local Commissioner, was appointed, in this case, who visited the site alongwith Halqa Patwari, and prepared the rough site plan. She further submitted that, as per the report of the Local Commissioner, a newly constructed water course (khal), was in existence, at the spot. She further submitted that the evidence, produced by the defendants/appellants, was duly scrutinized by the Courts below, and, ultimately, they came to the conclusion, that the caveator/respondent, was entitled to the mandatory and permanent injunction. She further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, RSA No. 1136 of 2009 5 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 trial Court, and 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. The question that fell for consideration is, as to whether, a new water channel (khal), had been constructed by the defendants/appellants in violation of the order of injunction. From the jamabandi for the year 1998-99, khasra girdawri P6, and Aks Shijra, it was not proved that there was any water course in existence, in the land in dispute of the plaintiff. No evidence was produced by the defendants, to prove the existence of water course (khal) in the land in dispute since long. The compromise D1, does not bear any date. It does not disclose the khasra nos. in which the defendants reconstructed the khal. The compromise D1 was, thus, of no avail to the defendants. It is evident from the judgements of the Courts below that Gursewak Singh, Advocate (PW6), was appointed as a Local Commissioner, who visited the spot alongwith the halqa Patwari. He submitted the report, indicating therein, the existence of newly constructed temporary khal, in the property of the plaintiff. The khal was constructed by the defendants, as per the evidence produced by the plaintiff. The Courts below, after due scrutiny of the RSA No. 1136 of 2009 6 evidence recorded, concurrent finding of fact that the defendants constructed the khal in the property of the plaintiff. The Courts below were, thus, right in coming to the conclusion that the plaintiff was entitled to the mandatory and permanent injunction. The judgements and decrees of the Courts below do not suffer from any illegality or perversity. The submission of the Counsel for the appellant being without merit, must fail and the same is rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 05.08.2009 (SHAM SUNDER) Amodh JUDGE