RSA No.2958 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2958 of 2007(O & M) Date of Decision:27.04.2010 Kehar Singh & anr. .... appellants Versus Balwant Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.V.Ramswaroop,Advocate for the appellant Mr.Arun Jain, Senior Advocate with Mr.Sunil Sharma, Advocate for the respondents **** RAKESH KUMAR GARG J.(ORAL): This is plaintiffs' second appeal challenging the judgment and decrees of the courts below whereby their suit for mandatory injunction to handover possession of suit property to them was dismissed. As per the facts, vide sale deed dated 3.4.1972, the plaintiffs purchased plot Nos.18 and 17 measuring 568 sq.yards and 522 sq.yards respectively from Tehsildar (Sales) Karnal. Maghar Singh son of Shankar Singh (since deceased), who was father of the plaintiffs and defendants No.1 to 3, was given 1/3rd share out of the aforesaid plots. Later on, Maghar Singh suffered decree dated 28.1.1988 in favour of defendants No.1 to 3 regarding these plots. The case of plaintiff-appellants before the Courts below was that they had given 1/3rd share each out of their plot to RSA No.2958 of 2007 2 their father just to earn livelihood, merely as a licensee and not as an owner and after some time the aforesaid licence in his favour was cancelled. Thereafter, the status of aforesaid Maghar Singh over the property in dispute was unauthorized. Maghar Singh was not competent to suffer the decree dated 28.1.1988 with regard to the property in dispute in favour of defendants No.1 to 3 and thus, the decree for mandatory injunction directing the defendants to handover vacant possession of the suit property was prayed. The aforesaid suit was contested by the respondents who submitted that the plaintiffs were neither owners nor in possession of the property in dispute and the same was gifted by them vide gift deeds dated 26.7.1972 in favour of their father Maghar Singh and after that the property in dispute was given by Maghar Singh to defendants No.1 to 3 through the Civil Court decree dated 28.1.1988. The aforesaid decree was challenged by the plaintiffs in civil suit No.1092 of 1988, which was dismissed and thus, the suit was without any merit and was liable to be dismissed. The Courts below on appreciation of evidence held that the plaintiffs had failed to prove that Maghar Singh was merely a licensee qua the suit property and it was held that Maghar Singh being owner in possession of the property in dispute on the basis of gift deeds was competent to transfer the ownership of the same in favour of defendants No.1 to 3. Moreover, the civil suit filed by the appellants earlier challenging the decree dated 28.1.1988 was dismissed. Thus, the suit filed by the plaintiff-appellants seeking a decree for mandatory injunction was ordered to be dismissed with costs. The aforesaid judgment and decrees of the Courts below have been challenged before this Court on the ground that the findings of the courts below were against the well settled principles of law as the issue raised in the present suit was not discussed in the previous litigation and RSA No.2958 of 2007 3 therefore the findings of the courts below that the present suit is hit by Order 2 Rule 2 CPC are wrong and are liable to be set aside. I have perused the impugned judgment and decrees of the Courts below and heard the learned counsel for the parties. In para No.19 of the judgment of the Lower Appellate Court a history of the litigation between the parties is given, wherein it has been clearly depicted that the same plea was earlier raised between the parties and was decided against the appellants. In view of the aforesaid findings which could not be challenged, the argument raised by the learned counsel for the appellants is without any merit. Thus, no substantial question of law, as raised in the grounds of appeal, arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 27.04.2010 neenu/ps