Vinod Kumar and Sroan Ram v. CORUM

father Soran Ram-appellant-defendants (hereinafter to be referred as “the defendants”) is to the judgment and decree dated 21.8.2006, whereby the trial Court has decreed the suit for permanent injunction filed by Kasturba Gandhi National Memorial Trust-respondent-plaintiff (hereinafter to be referred as “the plaintiff Trust”) and the judgment and decree dated

18.10.2008, vide which, their appeal was dismissed as well by the first Appellate Court.

2. The epitome of the facts, relevant for disposal of the present appeal and emanating from the record, is that the plaintiff-Trust has filed the present suit for permanent injunction restraining the defendants from interfering in its possession over the property in dispute by raising construction or in any other manner whatsoever either themselves or through their agents, servants or representatives and for mandatory injunction directing them to remove the construction raised over the disputed property in the form of one room and boundary wall. Regular Second Appeal No.2052 of 2010 2

3. The case set up by the plaintiff-Trust, in brief in so far as relevant, was that the plaintiff Trust is owner of the property in dispute and got approved the site plan from the Municipal Council, Radaur for raising construction over it, vide resolution dated 22.1.1968. The plaintiff-Trust constructed only one room over the said property and the same is being used for running a children school (Balbari). Now the defendants have started raising construction of a room and boundary wall on the north-eastern portion of the suit property. The concerned police was informed accordingly, whereupon, a case under section 447 IPC was registered against the defendants. It was also claimed that the defendants have admitted the ownership of the plaintiff-Trust, while suffering a decree on

6.9.2001 in civil suit No.447 of 1991 titled as “Vinod vs. Soran, but now they have started denying ownership of the plaintiff-Trust of the property in dispute.

4. Levelling a variety of allegations, in all, according to the plaintiff-Trust, it is owner and in possession of the suit property, but the defendants have illegally started construction over it without any legal right. The plaintiff-Trust asked the defendants not to do so, but in vain, which necessitated it to file the present suit. On the basis of the aforesaid allegations, the plaintiff-Trust filed this suit against the defendants, in the manner indicated here-in-above.

5. The defendants contested the suit and filed the written statement, in which, it was pleaded that the suit property was already in possession of defendant No.2, in which, he has constructed one kacha room for tethering his pigs and the same had come to him from his fore father since 20 years ago. It was claimed that now defendant No.2 has transferred Regular Second Appeal No.2052 of 2010 3 the said property alongwith other property in favour of his two sons, namely, Vinod Kumar defendant No.1 and his brother Kuldeep Singh. The ownership and possession of the plaintiff-Trust was denied. Succinctly, according to the defendants, they are owners and in possession of the disputed property. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

6. In the wake of the pleadings of the parties, the trial Court framed the following issues for adjudication:-

1. Whether the plaintiff is owner in possession of the suit property?OPP

2. Whether the suit is not maintainable?OPD

3. Whether the plaintiff has no cause of action?OPD

4. Whether the plaintiff has no locus standi?OPD

5. Whether the plaintiff is estopped from filing the suit?OPD

6. Whether the suit is bad for purpose of court fee and jurisdiction?OPD

7. Relief.

7. The plaintiff-Trust, in order to substantiate its case, produced oral as well as documentary evidence on record, but no evidence was produced by the defendants to rebut the same despite adequate opportunities.

8. The trial Court decreed the suit of the plaintiff-Trust and the judgment and decree was maintained by the first Appellate Court.

9. The appellant-defendants still did not feel satisfied with the impugned judgments and decrees of the Courts below and filed the present appeal.

10. Having heard the learned counsel for the appellants, having gone through the record of the case and after considering the matter deeply, Regular Second Appeal No.2052 of 2010 4 to my mind, there is no merit in the appeal.

11. The main argument of the learned counsel that since the counsel did not inform the defendants about the dates of hearing, so, they could not produce the evidence, is not only devoid of merit but misplaced as well. The perusal of the record (para 13 of the judgment of the first Appellate Court), would reveal that the plaintiff-Trust had closed its evidence on 14.6.2005. The case was adjourned for evidence of the defendants to 29.9.2005, 20.10.2005 and 6.1.2006. On 6.1.2006, the Presiding Officer was on special casual leave. The file was taken up on

2.1.2006 and the case was adjourned to 2.3.2006 for evidence of the defendants. Thereafter, the case was again adjourned for the same purpose to 19.5.2006 and last opportunity was granted. Again, the case was adjourned to 19.7.2006 and finally, the evidence of the defendants was closed on the said date, as they failed to produce the same, which has been acknowledged by the counsel for the defendants. Meaning thereby, the defendants have availed five substantive opportunities to adduce their evidence and the case remained pending at the stage of evidence of the defendants, right from 15.6.2005 to 19.7.2006 i.e. for a period of more than one year. Above being the position, it cannot possibly be saith that either the counsel for the defendants did not inform them or adequate opportunities to lead evidence were not granted to the defendants. Thus, the contrary arguments of the learned counsel “stricto sensu” deserve to be and are hereby repelled, under the present set of circumstances.

12. The next argument of the learned counsel for the defendants that the plaintiff-Trust did not produce any cogent evidence to prove that the property in dispute was donated to it, is again not tenable. The plaintiff Regular Second Appeal No.2052 of 2010 5 Trust has produced the site plan (Ex.P2), which was sanctioned by the Municipal Council, vide resolution No.9(5) dated 22.1.1968 and the copy of assessment register of building application (Ex.P4), besides producing oral evidence. The plaintiff-Trust has also produced the copy of decree (Ex.P10) and site plan (Ex.P8) in a suit filed by Vinod Kumar defendant against his father (defendant No.2), wherein, defendants were shown to be owners of some other property falling on the south side of the disputed property, which proves the ownership of the plaintiff-Trust.

13. Not only that, Ex.P13 and Ex.P14 are the judgment and decree dated 23.5.2006, vide which, another suit filed by Vinod Kumar defendant against the plaintiff-Trust for permanent injunction was dismissed and the defendants have failed to prove their ownership and possession over the disputed property. It clinches the matter. The oral as well as documentary evidence brought on record by the plaintiff-Trust remained un-rebutted in this relevant connection.

14. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Courts below.

15. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the plaintiff-Trust in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that there remains no doubt about the fact that defendant No.1 has failed to prove his ownership/possession over the suit Regular Second Appeal No.2052 of 2010 6 property, therefore, he has no right to remain in possession of any portion of the same, which pertains to the plaintiff-Trust. In other words, the defendants have not led any evidence to rebut the established case of the plaintiff. The stand of the defendants that the suit property had come to defendant No.1 through a release deed executed by defendant No.2 because the defendants have not even proved/produced the said release deed on file. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.

16. Meaning thereby, the entire gamut/matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, arises for determination in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the courts below as contemplated under section 100 CPC, in the obtaining circumstances of the instant case,.

17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants.

18. In the light of the reasons mentioned here-in-above, as there is no merit, therefore, the instant appeal is hereby dismissed.

2.7.2010 AS (Mehinder Singh Sullar) Judge