Punjab-Haryana High Court
Kuldeep Singh vs Surinder Pal Singh @ Chinda Singh And ... on 23 April, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.2709 of 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
RSA No.2709 of 2011(O&M)
Date of Decision: April 23, 2012
Kuldeep Singh .......Appellant
Versus
Surinder Pal Singh @ Chinda Singh and others .......Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Malkeet Singh, Advocate for the appellant.
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TEJINDER SINGH DHINDSA, J.
CM No.7343-C of 2011 This is an application seeking condonation of delay of 85 days in re-filing the appeal. The application is duly supported by an affidavit.
2. In view of the averments made in the application, prayer is allowed and the delay of 85 days in re-filing the second appeal is condoned.
3. CM is allowed.
RSA No.2709 of 2011
4. The plaintiff-appellant is in second appeal before this Court having remained unsuccessful in both the Courts below.
5. The plaintiff filed a suit for permanent injunction restraining the defendants from alienating or from dispossessing him from the suit property. It was pleaded that in terms of a mutual consent between the parties, the plaintiff along with his brothers is in cultivating possession of RSA No.2709 of 2011(O&M) 2 the suit property comprising of 23 Kanals 1 Marla. It was alleged that the defendants were wanting to forcibly construct a brick pave passage in khasra No.19/2 and 20.
6. The defendants contested the suit and stated that they were owners in possession to the extent of half share of 23 Kanals 1 Marla. No partition had taken place, even though an application for partition of suit property was pending. It was stated that there is a passage leading upto the well in the land bearing khasra No.28 and all the co-sharers have left a Rasta through khasra No.19/2 and 20. It was pleaded that the plaintiff had filed the suit with malafide intention so as to take control of the passage.
7. The trial Court dismissed the suit and even a civil appeal, preferred by the plaintiff-appellant, has also been dismissed vide impugned judgment dated 18.11.2010.
8. I have heard Mr.Malkeet Singh, learned counsel for the appellant at length.
9. Learned counsel would contend that the Courts below have erred in denying the relief of permanent injunction to the appellant and there has been a mis-reading and mis-appreciation of evidence.
10. The appellant to seek the relief claimed in the suit had to lead cogent evidence to prove his exclusive possession as regards the suit property comprised in khasra No.19/2 and 20. No such evidence was led. On the other hand, there is an admission by the witnesses of the plaintiff to the effect that there is an existence of the Rasta/passage leading to the well. The testimony of Rajinder Singh, who had been examined as PW2, was precisely to such effect. Likewise, even PW1 clearly deposed that there was RSA No.2709 of 2011(O&M) 3 a taur of the well in the suit property and that there was a water channel and along with the water channel, there exists a passage.
11. Upon due appreciation of evidence, the Courts below have recorded a concurrent finding against the appellant as regards his exclusive possession of the suit property is concerned. I find no perversity as regards such finding of fact.
12. The present second appeal must, accordingly, fail as it does not raise any question of law, much less a substantial question of law.
13. The present second appeal is, accordingly, dismissed.
14. Appeal dismissed.
( TEJINDER SINGH DHINDSA )
APRIL 23, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No