Kashmir Singh vs Gurmeet Singh and Others

Satish Kumar Mittal, J.—This is plaintiffs Regular Second Appeal against the judgment and decree passed by the first Appellate Court whereby the suit of the plaintiff for permanent injunction has been dismissed after reversing the findings of the trial Court.

I have heard the counsel for the appellant and gone through the judgments and decrees passed by both the courts below. In this case, the dispute is about the vacant plot, which is situated adjoining the house of the plaintiff. The suit property is situated within the ''lal dora'' of village. Both the parties are claiming themselves to be owners in possession of the suit property However, they did not produce any document with regard to the title of the suit property. The trial Court decreed the suit on the basis of the Local Commissioner''s report wherein she has mentioned that she was told by Harjinder Singh, Sarpanch that the disputed site is being used by the plaintiff. Therefore, from the said averment in the report of the Local Commissioner, the plaintiff proved to be in possession of the suit property.

The first Appellate Court has reversed the finding of the trial Court. While reversing the said findings, the first Appellate Court has considered and appreciated the evidence led by the plaintiff as well as the report of the Local Commissioner (Ex.D5/1). It has been found that out of four witnesses, the plaintiff has not tendered two witnesses for their cross-examination. It has been found that two witnesses examined by the plaintiff do not prove the case set up by them. It has been observed that as per the case of the defendants, the house of the plaintiff is on the southern side of the suit property and in between the said house and the suit property, there was an intervening wall which has been demolished by the plaintiff to include the suit property in his house. However, the plaintiff denied the existence of the said wall as well as demolition of the same. The stand of the plaintiff has been belied by the report of the Local Commissioner (Ex.D5/1) which has been proved by her while appearing as DW5. In the report, it has been specifically stated that there was a wall as pointed out by the defendants and the reminiscence of the demolished wall were existing at the spot. It has been reported that the said wall was in the middle of the Court-yard, which is depicted in the site plan Ex. Dl produced by the plaintiff. While taking into consideration the said fact, the first Appellate Court has come to the conclusion that the plaintiff has no concern with the suit property which was situated outside the boundary wall of his house and he had demolished the said wall with intention to include the disputed property in his house. It has been found as a fact by the first Appellate Court after appreciating the evidence that the plaintiff has failed to prove that he is owner in possession of the disputed site, which is a vacant plot and merely because the plaintiff used to tether his cattle and put a toka thereon, does not mean that he has become owner of the suit property. In my opinion, the first Appellate Court has recorded the aforesaid finding of fact after appreciating the evidence available on the record and from those evidence, no different view is possible. It is well settled that this Court u/s 100 CPC cannot re-appreciate the evidence in order to reach the conclusion other than the one recorded by the courts below merely because another view is possible. In this regard, reference can be made to Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, ; Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., ; Bondar Singh v. Nihal Singh 2002 (4) S.C.C. 161 and Kanhaiyalal and Others Vs. Anupkumar and Others, .

No substantial question of law is involved in this appeal.

Dismissed.