R.S.A. No. 4267 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4267 of 2009 (O&M) Date of decision: 27.01.2010 Naurang Singh ....Appellant Versus Ajit Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. G.S. Bhatia, Advocate, for the appellant. VINOD K. SHARMA, J.(ORAL) This regular second appeal is directed against the judgment and decree dated 9.4.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant for possession and mandatory injunction, stands dismissed. The plaintiff filed a suit for possession of abadi area, said to have been encroached upon by the defendants by raising construction thereon. The plaintiff/appellant also sought mandatory injunction, directing the defendant/respondents to remove the obstruction made by them, to block the discharge/flow of daily use water, and rainy water from the house of the plaintiff. The suit was contested. On appreciation of evidence, the learned Courts below have recorded a concurrent finding of fact, that plaintiff failed to prove that he was owner of the suit property. It was held that the plaintiff/appellant was not entitled to possession of the suit property or injunction. Other R.S.A. No. 4267 of 2009 (O&M) -2- issues were decided in favour of the plaintiff being not pressed. Mr. G.S. Bhatia, learned counsel, appearing on behalf of the appellant contends, that this appeal raises the following substantial questions of law: - “1. Whether the learned Courts below did not appreciate the evidence correctly? 2. Whether the learned lower appellate Court was justified in not permitting the appellant to withdraw the suit, with liberty to file a fresh one on the same cause of action?” In support of the substantial questions of law, the learned counsel for the appellant contended, that the learned Courts below did not appreciate the oral and documentary evidence correctly, therefore, the judgment passed by the learned Courts below is perverse, which deserves to be set aside. This Court in regular second appeal cannot reappraise the evidence. The substantial question of law raised, therefore, does not fall within the definition of substantial question of law. The finding of fact on appreciation of evidence is not open to challenge in second appeal under Section 100 of the Code of Civil Procedure. In support of the second substantial question of law, the learned counsel for the appellant contends, that the learned trial Court had non-suited the plaintiff/appellant on ground of failure of plaintiff to prove the site plan for want of measurement, the learned lower appellate Court should have allowed the application under Order 23 Rule 1 of the Code of Civil Procedure for withdrawal of suit with liberty to file fresh one on the same cause of action. R.S.A. No. 4267 of 2009 (O&M) -3- This contention of the learned counsel for the appellant again is mis-conceived, as this Court cannot interfere with the exercise of discretion by learned appellate Court unless it is shown to be perverse, arbitrary, or contrary to established principle of law. The plaintiff/appellant had taken a chance before the learned trial Court, and after having failed could not be permitted to withdraw the suit to fill up lacuna and file a fresh case on same cause of action. The learned lower appellate Court, therefore, was justified in dismissing the application. No merit. Dismissed. (Vinod K. Sharma) Judge January 27, 2010 R.S.