Regular Second Appeal No.3750 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3750 of 2009 Date of Decision:-13.7.2011 Gurmit Kaur and another ...Appellants Versus Bachan Singh and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Anurag Arora, Advocate for the appellants. Ms.Sonia G.Singh, Advocate for respondent No.1. Nemo for respondent No.2. 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 appeal and emanating from the record, are that Jagtar Singh son of Bachan Singh respondent No.1-plaintiff (for brevity “the plaintiff”) had expired. Gurmit Kaur is the widow of, while Narinder Singh alias Nandi appellant-defendants (for short “the defendants”) is the son of Jagtar Singh. In this manner, plaintiff Bachan Singh is father-in-law of Gurmit Kaur and grand-father of Narinder Singh. The plaintiff was stated to be owner and in possession of the house in dispute bearing unit No.B-VI/354, situated at Santa Wali Gali, Near Janda Wala Road, Barnala. After the death of his son Jagtar Singh, he (plaintiff) gave some portion of his property on western side of his house to defendant Nos.1 and 2 in a family settlement. According to the plaintiff that on 30.12.2004, when he was in a process of constructing a room on his plot, then, the defendants became furious and stopped the construction, abused him and forcibly demolished the western wall of his house. They also caused injuries to him. Regular Second Appeal No.3750 of 2009 -2- 2. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that he is the owner and in possession of the disputed property. The defendants had demolished the western wall of his house without any legal right and caused injuries to him. On the basis of aforesaid allegations, plaintiff filed the suit for a decree of mandatory injunction, directing the defendants to re-construct the western wall of his house in the manner depicted hereinbefore. 3. The defendants contested the suit and filed their written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit; cause of action and locus standi of the plaintiff. The case set up by the defendants, in brief in so far as relevant, was that the plaintiff is neither owner nor in possession of the part of the suit property. On the other hand, the contesting defendants are owners and in possession of the property in dispute. Plaintiff was stated to have filed the suit as a counter blast to the suit filed by the contesting defendants. The factum of demolition of western wall in question by them was also denied. 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. In the wake of pleadings of the parties, the trial Court framed the necessary issues indicated in its judgment for proper adjudication of the case. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 5. The trial Court, after taking into consideration the entire material on record, decreed the suit of the plaintiff and directed the defendants to re-construct the western wall in question towards the suit property, by virtue of impugned judgment and decree dated 10.10.2008. 6. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court, by way Regular Second Appeal No.3750 of 2009 -3- of impugned judgment and decree dated 15.5.2009. 7. The appellant-contesting defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and instituted the present appeal. 8. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the present appeal in this context. 9. Ex-facie the solitary argument of learned counsel for the appellants that since the plaintiff has failed to prove his ownership and possession over the suit property, on which, the wall was demolished, so, the Courts below have committed a legal mistake in decreeing his suit, lacks merit. 10. As is evident from the record that the trial Court, having completed all the codal formalities and on ultimate analysis of evidence on record, decreed the suit of the plaintiff, by virtue of impugned judgment and decree. 11. Not only that, the judgment of the trial Court was upheld by the Ist appellate Court, by way of impugned judgment dated 15.5.2009, the operative part of which is (para 15) as under:- “As already observed above, it is the specific plea of the plaintiff about having demolished the wall existing on the western side of the suit property. The plaintiff as well as his witness have stated this fact. On the contrary, though the appellants/defendants, in the written statement denied the existence of the wall, but however, as already observed above, while facing cross-examination, the appellant/defendant No.1 Gurmit Kaur has admitted about the existence of the wall in between her property and the property of Bachan Singh, her father-in-law. She stated that this wall was constructed with her consent. Further, she had stated voluntarily that this wall has been demolished by her father-in-law and her brother-in-law. Had it been so, then definitely, the defendants would not have denied about the existence of the wall at the alleged spot. It shows that, in fact, the wall was in existence and she has suppressed this fact with malafide intention. The plaintiff as well as his son have specifically stated about the existence of the wall and the location of the wall, has already been established from the site plan Regular Second Appeal No.3750 of 2009 -4- Ex.P-2. Also from their testimonies, it is evident that it was demolished by the defendants. Such being the evidence, when the wall has been demolished by the defendants, therefore, the lower Court had rightly passed the decree for mandatory injunction, in favour of the plaintiff. Resultantly, the impugned judgment and decree, merits no interference by way of present appeal. According, the appeal is hereby dismissed with costs.” 12. Meaning thereby, the Courts below have 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 trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the plaintiff is the owner and in possession of the suit property and the defendants had forcibly demolished the western wall of his house. Such pure concurrent 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 appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this respect. 13. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Courts below. 14. Sequelly, the entire matter revolves around the re-appreciation 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 judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR Regular Second Appeal No.3750 of 2009 -5- (SC) 1749 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) 13.7.2011 Judge AS Whether to be referred to reporter?Yes/No