Regular Second Appeal No.324 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.324 of 2008 Date of Decision:-21.9.2011 Amar Singh ...Appellant Versus Gram Panchayat and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.D.P.S.Kahlon, Advocate for the appellant. Mr.Anil Kumar Garg, Advocate for respondent Nos.2 to 4. Nemo for other respondents. M ehinder S ingh S ullar , J . (Oral) Having kept the law laid down by Hon'ble Apex Court in case Kashmir Singh vs. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 into focus, now the short and significant question, though important that arises for determination is, as to whether any substantial question of law is involved in the instant regular second appeal, so as to invoke the jurisdiction vested in this Court under Section 100 C.P.C or not ? 2. Concisely, the facts, which need a necessary mention, for deciding the present appeal and emanating from the record, are that Amar Singh son of Bakshish Singh appellant-plaintiff No.1, Karnail Singh and others proforma respondent Nos.5 to 8-plaintiff Nos.2 to 5 (for brevity “the plaintiffs”) filed the suit for a decree of mandatory injunction, directing the Gram Panchayat, Kainaur and others respondent Nos.1 to 4-defendants No.1 to 4 (for short “the defendants”), to demolish the drain, denominated by letters A & B shown in blue colour in the site plan and to stop the flow of water by removing the pond in question, inter-alia pleading that the defendants have forcibly and illegally Regular Second Appeal No.324 of 2008 -2- constructed the indicated drain by raising its level, diverting the flow of water, from eastern to western side. It leads to Dargah (sacred place) of Peer Baba and village abadi. The rainy water over flows from the drain to the fields/property of the plaintiffs and other inhabitants of the village, residing in low lying area. 3. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiffs claimed that the construction of the drain, by raising its level, is causing nuisance to the devotees of Peer Baba and other inhabitants of the village, living in low lying abadi area and is liable to be removed. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of mandatory injunction against the defendants in the manner depicted hereinabove. 4. The defendants contested the suit. The Gram Panchayat (defendant No.1) filed its written statement, while defendant Nos.2 to 4 filed their separate joint written statement, inter-alia taking certain preliminary objections of, maintainability of the suit, concealment of facts, cause of action, locus standi of the plaintiffs and jurisdiction of civil Court in view of the bar contained under the provisions of The Punjab Village Common Lands (Regulation) Act. According to the defendants that the plaintiffs have withheld the true facts and are guilty of concealment. In fact, the drain in question had already been constructed and was in existence in the public street, but the plaintiffs have demolished the part of it. The defendants have not raised any level of the drain (Bund), to divert the natural flow of water connecting the main village pond. 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. 5. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 6. The parties to the lis, produced on record the oral as well as Regular Second Appeal No.324 of 2008 -3- documentary evidence, in order to prove their respective pleaded cases. 7. The trial Court dismissed the suit of the plaintiffs, by virtue of impugned judgment and decree dated 22.1.2005. 8. Aggrieved by the decision of the trial Court, Amar Singh, one of the plaintiffs, filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 2.3.2007. 9. Appellant-plaintiff Amar Singh still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeal. 10. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the argument of the learned counsel that since the indicated drain is causing nuisance to the plaintiffs, so, the Courts below committed a mistake in dismissing their suit, lacks merit. 12. As is evident from the record that the Gram Panchayat is the owner and in possession of the street/site in dispute, where the drain was constructed to drain out the water of the village to the main pond. The plaintiffs claimed that the drain is causing nuisance and hindrance to them, which was stoutly denied by the defendants. In that eventuality, a very heavy burden of proof was upon the plaintiffs to prove that the drain is causing any kind of damage to them, but they have miserably failed in this respect. None of the plaintiffs, except Amar Singh, appeared in the Court to substantiate their pleaded case. The self serving statement of Amar Singh is not sufficient in this relevant behalf. 13. Taking into consideration the entire evidence on record, the trial court has rightly negatived the claim of the plaintiffs. Not only that, the decision of the trial Court was upheld by the Ist Appellate Court, by means of impugned judgment dated 2.3.2007, which, in substance, is (para 15) as under:- Regular Second Appeal No.324 of 2008 -4- “15. xxx xxx xxx xxx xxx Since the plaintiff has failed to prove any damage to his property or the over flowing of the water from the drain in question, it appears to me that the present case is nothing but a litigation which is the result of some prestige or ego and for that reason the other plaintiffs did not join hands with plaintiff Amar Singh either during the recording of the evidence or at least after the dismissal of their suit by the trial Court. Plaintiff Amar Singh has altogether failed to satisfy this Court that the construction of this drain A-B has resulted in loss or damage to his property or the properties of other villagers or has caused any injury to the religious sentiments of the villagers living in village Kainaur. The report submitted by Satish Chawla does not leas us any where in order to conclude that even if the flow has been diverted, the same has resulted any loss or damage to the plaintiffs.” 14. The learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees are illegal and would invite any interference in this relevant direction. 15. 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 scanned the admissible evidence in relation to the pleadings of the parties, they have recorded the above-mentioned concurrent findings of fact. 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 appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at, in this regard. 16. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff to assail the findings in the impugned judgments and decrees. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly Regular Second Appeal No.324 of 2008 -5- considered and dealt with by the Courts below. 17. In this manner, 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, in view of the law laid down by Hon'ble Supreme Court in Kashmir Singh's case (supra) in the obtaining circumstances of the present case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 19. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 21.9.2011 Judge AS Whether to be referred to reporter?Yes/No