Harmeet Singh vs Didar Singh and Others

L.N. Mittal, J.—Plaintiff Harmeet Singh having remained unsuccessful in both the courts below has filed the instant second appeal.

Appellant-plaintiff filed suit against Respondents/defendants alleging that the plaintiff-appellant is in continuous peaceful possession of the suit property since the year 1950 as its owner. The suit property is part and parcel of abadi property of the plaintiff. Plaintiff is using the same as courtyard. Defendants have no right, title or interest therein but the defendants threatened to interfere in peaceful possession of the plaintiff over the suit land. Accordingly, plaintiff sought permanent injunction restraining the defendants from interfering in peaceful possession of the plaintiff over the suit property and from dispossessing him therefrom.

Defendants denied all the plaint allegations and inter-alia, pleaded that suit property is a pond wherein dirty/rainy water of the village accumulates. Plaintiff is neither owner nor in possession of the suit property. Plaintiff has furnished wrong site plan. Defendants have every right, title and interest over the suit property. Plaintiff has no concern therewith. Defendant No. 3 Gram Panchayat manages the suit property.

Learned Additional Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 12.6.2007 dismissed plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge (Fast Track Court), Fatehgarh Sahib vide judgment and decree dated 27.5.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellant vehemently contended that even Bhupinderjit Kaur DW1 (Sarpanch of Gram Panchayat defendant-Respondent No. 3) admitted possession of the plaintiff over the suit property. The contention cannot be accepted. Nowhere in her statement Annexure P/4, Bhupinder Kaur DW1 has admitted the possession of the plaintiff over the suit property. On the contrary, she stated that she did not know how much land is in possession of the plaintiff. However, admittedly the plaintiff is in possession of some other land adjoining the suit property. Bhupinder Kaur admitted that house of the plaintiff is within Lal Dora. She also admitted that on northern side of the pond i.e. suit property there is abadi of plaintiff Harmeet Singh. She also stated that plaintiff is in possession of the land where trees are existing. However, she has nowhere admitted that plaintiff is in possession of the suit property.

The plaintiff himself appeared as his own witness and examined two other witnesses who stated that plaintiff is in possession of the suit property since the year 1950. The plaintiff also examined Draftsman who prepared site plan. Similarly, on behalf of defendants, Sarpanch Bhupinder Kaur appeared in the witness box and also two more witnesses were examined besides Draftsman who prepared site plan. They have stated that plaintiff is not in possession of the suit property. Plaintiff''s evidence has been rebutted by defendants'' evidence. The plaintiff''s oral evidence is not sufficient to prove that he is either owner or in possession of the suit property. No documentary evidence has been led by the plaintiff in support of his version. Copy of jamabandi produced by the plaintiff does not relate to suit property.

Both the courts below after appreciating evidence have come to concurrent finding that the plaintiff is not proved to be owner or in possession of the suit property. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The plaintiff-appellant has not explained as to how he became owner of the suit property.

Learned Counsel for the appellant contended that there is no evidence to depict that suit land was ever reserved for common purpose of the villagers or that it has vested in defendant No. 3 Gram Panchayat. However, no such question was required to be adjudicated upon because it is for the plaintiff to establish that he is owner in possession of the suit property. Since he failed to do so, he has been rightly non-suited by the courts below.

Learned Counsel for the appellant also contended that in a similar case filed by one Mewa Singh, this Court in CR No. 5365 of 2004 arising out of matter of temporary injunction in that suit, vide order dated 11.1.2007 directed the trial court to appoint a Local Commissioner in order to verify whether the disputed site involved in that suit was within Lal Lakir and whether some trees are growing in it and thereafter the trial court was directed to decide the application for interim stay afresh. I failed to understand as to how this circumstance effects the merits of the instant case. Learned Counsel for the appellant also contended that the said suit of Mewa Singh has since been decreed by the trial court vide judgment dated 10.11.2009. However, if in that suit Mewa Singh succeeded in proving his case, it would not mean that the suit filed by the appellant herein should also be decreed even though he has failed to prove his case. The aforesaid contention raised on behalf of the appellant is completely absurd, misconceived and frivolous.

For the aforesaid reasons, I find no merit in the instant second appeal which is accordingly dismissed.