Punjab-Haryana High Court
Kishan Chand vs Chander Bhan And Others on 20 July, 2010
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 2503 of 2008 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 2503 of 2008
Date of decision : July 20, 2010
Kishan Chand
....Appellant
versus
Chander Bhan and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. JC Malik, Advocate, for the appellant
Mr. Surya Kant Gautam, Advocate, for respondent no. 1
None for proforma respondents no. 2 and 3
L.N. Mittal, J. (Oral)
This is second appeal by defendant no. 1 after the defendants (appellant and proforma respondents no. 2 and 3) remained unsuccessful in both the courts below.
Suit was filed by Chander Bhan respondent no. 1 against appellant and proforma respondents no. 2 and 3 alleging that plaintiff - respondent no. 1 is owner in possession of the suit property being his ancestral gher bearing No. 1099 depicted in red colour in site plan Ex. P1 annexed with the plaint. The defendants were bent upon to dispossess the plaintiff from the suit property forcibly and illegally. Accordingly, the Regular Second Appeal No. 2503 of 2008 -2- plaintiff sought permanent injunction restraining defendants from dispossessing the plaintiff from the suit property and from interfering in his possession thereon.
The defendants denied plaint allegations and inter alia, pleaded that plaintiff is neither owner nor in possession of the suit property. On the other hand, defendants are owners in possession of the gher as described by boundaries in the written statement and as shown in their site plan Ex. D1. Various other pleas were also raised.
Learned Additional Civil Judge (Senior Division), Gohana vide judgment and decree dated 2.5.2006 decreed the plaintiff's suit.
First appeal preferred by defendants has been dismissed by learned Additional District Judge, Sonepat vide judgment and decree dated 11.1.2007. Feeling aggrieved, defendant no. 1 only has preferred the instant second appeal.
I have heard learned counsel for the parties and perused the case file.
Both the parties led oral evidence in support of their respective versions. Both parties also produced their site plans. However, the plaintiff also examined Jagdish Ram Patwari PW2 who brought field book of abadi deh of the village and proved its certified copy Ex. P2 depicting that plaintiff is owner in possession of the disputed gher No. 1099. Learned counsel for the appellant assailed the aforesaid document by contending that the witness had not brought the original document. The contention cannot be accepted because the witness brought carbon copy of the original document and therefore, the said carbon copy prepared in the Regular Second Appeal No. 2503 of 2008 -3- same process as the original was primary evidence of which certified copy has been proved. Learned counsel for the appellant vehemently contended that Patwari has stated that he had no right to give certified copy of the said document. However, there is no such statement by the Patwari who has rather allegedly made endorsement on a document shown by the counsel that Panchayat has right to give copy of the document. The document shown is copy given by Sarpanch. However, it does not show in any manner that certified copy of the document Ex. P2 was not correct copy or was not proved formally. The said copy was duly proved by the witness who had brought the original record.
Learned counsel for the appellant also contended that suit property is ancestral property of the parties and has not been partitioned. It was contended that both the parties are descendants of common ancestor. The contention has been noticed simply to be rejected because there is neither any pleading nor any evidence on record to substantiate the same. The defendants nowhere pleaded that they along with plaintiff had any common ancestor nor the defendants pleaded that suit property was ancestral property of both the parties and had not been partitioned. On the other hand, the defendants denied that the plaintiff was owner or in possession of the suit property. Learned counsel for the appellant referred to paragraph 11 of the judgment of the lower appellate court but the same only refers to the contentions raised by learned counsel for the defendants/appellants in the lower appellate court. The said paragraph does not contain any observation or finding of the lower appellate court itself. Learned counsel for the appellant contended that jamabandi was produced Regular Second Appeal No. 2503 of 2008 -4- before the lower appellate court. However, counsel for the appellant admits that the said jamabandi was not produced or taken as additional evidence by the lower appellate court. Even otherwise, there is no pleading in the written statement that the suit property was joint ancestral property of the parties or that the parties had common ancestor or that the suit property has not yet been partitioned. Consequently, the aforesaid contention is completely untenable being beyond pleadings. There is concurrent finding in favour of the respondent no. 1 and against the defendants. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. On the contrary, the entire case is based on finding of fact. Lower appellate court is final court for giving finding of fact. The finding is not based on mis-appreciation or mis- reading of the evidence on record. Consequently, there is no merit in the instant second appeal which is accordingly dismissed.
( L.N. Mittal )
July 20, 2010 Judge
'dalbir'