Sohan Lal & Ors. v. Soorti Parkash & Anr.

Present: Mr. R. L. Batta, Sr. Advocate with Mr. S.R. Chaudhari, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.10514-C of 2010 Allowed as prayed for. CM No.10515-C of 2009 For reasons mentioned in the application which is accompanied by affidavit, delay of 2 days in filing the appeal is condoned. CM No.10516-C of 2009 The application is allowed and Annexure A-1 to A-6 are taken on record, subject to all just exceptions. RSA No.3580 of 2010 and CM No.10517-C of 2010 Legal representatives of original defendant-Bujha Ram since deceased have filed the instant second appeal, having lost in both the Courts below. Respondents Soorti Parkash and Sukhchain filed suit RSA No.3580 of 2010 (O & M) -2- against Bujha Ram alleging that respondents/plaintiffs are in possession of the suit property and prior to them, their father Mangat Ram was in possession thereof. Defendant had filed suit which was dismissed vide judgment and decree dated 27.02.1974 (Ex.P- 1/Annexure A-5). It was held therein that defendant herein was not in possession of the suit land and Mangat Ram father of the plaintiffs herein was in possession thereof as he had taken the suit property from Wakf Board. The plaintiffs further alleged that the defendant had no right, title or interest in the suit property, but he threatened to forcibly dispossess the plaintiffs therefrom. Accordingly, plaintiffs sought permanent injunction restraining the defendants from interfering in possession of the plaintiffs over the suit property and from dispossessing the plaintiffs therefrom. Defendant denied the plaint allegations. It was pleaded that judgment and decree dated 27.02.1974 are invalid and illegal. Plaintiffs' father never came in possession of the suit land. Defendant is in possession of the suit land. It was also pleaded that the suit is barred by res judicata on account of decision in Suit No.533 of 1997. Various other pleas were also raised. Learned Civil Judge (Senior Division), Nawanshahar vide judgment and decree dated 15.09.2009 decreed the plaintiffs' suit. First appeal preferred by legal representatives of defendant has been dismissed by learned Additional District Judge, Shaheed Bhagat Singh Nagar vide judgment and decree dated 17.05.2010. Feeling aggrieved, instant second appeal has been preferred by legal representatives of the defendant. RSA No.3580 of 2010 (O & M) -3- I have heard learned counsel for the appellants and perused the case file. Along with the appeal, appellants have moved application bearing CM No.10517-C of 2010 for additional evidence for placing on record documents Annexure A-7 to A-9. The application cannot be allowed for multiple reasons. Firstly, nothing has been alleged in the application as to why the proposed additional evidence was not produced in the trial Court at appropriate stage or even by additional evidence or why the same was not produced in first appeal. Secondly, the appellants want to place the said documents Annexures A-7 to A-9 on record by way of additional evidence, but these documents are not per se admissible in evidence. Thirdly documents sought to be produced by way of additional evidence are not even relevant for deciding the instant appeal. The said documents relate to licence granted by Punjab Wakf Board in favour of Charanjit and Bachna Ram and the rent receipt regarding rent paid by them to Wakf Board. These documents have no bearing against the plaintiffs, who are not party to the same. Accordingly application for additional evidence stands dismissed. Learned counsel for the appellants contended that vide judgment dated 27.02.1974 Ex.P-1, plaintiffs' father was held to be in possession of the suit land only on the basis of single document produced in that suit. I fail to understand as to how this argument is relevant. The aforesaid judgment was inter parties i.e between Bujha Ram-defendant herein on the one hand and Mangat Ram father of the plaintiffs herein on the other hand. Finding in the judgment RSA No.3580 of 2010 (O & M) -4- categorically stated that Mangat Ram father of the plaintiffs had licence from Wakf Board, Punjab and Bujha Ram-defendant was not in possession of the suit property. The said finding has attained finality. In the subsequent suit, the Court is not to look into as to what was the basis of the said finding. The said finding operates as res judicata against the defendant herein. It is not the case of the defendant that subsequent to judgment dated 27.02.1974, the defendant came in possession of the suit land. Consequently, in view of judgment dated 27.02.1974 Ex.P-1, there is no escape from the conclusion that plaintiffs are in possession of the suit land and defendant is not in possession thereof. Learned counsel for the appellants also contended that vide judgment and decree Ex.D-2 and Ex.D-3 (Annexures A-1 and A- 2) dated 06.08.1999 and judgment and decree dated 03.03.2001 Ex.D-4 and Ex.D-5 (Annexures A-3 and A-4), defendant herein has been held to be in possession of the suit land. The contention is completely bereft of any merit. The said litigation was between Charanjit, Bachna Ram and Bujha Ram-defendant herein. Admittedly plaintiffs herein or their father/predecessor Mangat Ram was not party to the said litigation decided by judgments and decrees Annexures A-1 to A-4. Consequently, any finding in the said judgments and decrees has no bearing on the rights of the plaintiffs. On the contrary, at the risk of repetition, it has to be highlighted that there is finding inter parties vide judgment dated 27.02.1974 Annexure A-5 holding that defendant herein was not in possession of the suit land and Mangat Ram father of the plaintiffs herein was in RSA No.3580 of 2010 (O & M) -5- possession thereof. Consequently, plaintiffs herein have been rightly found to be in possession of the suit land by the Courts below. There is concurrent finding by both the Courts below. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. The said finding is the only conclusion that can be arrived at on the basis of evidence on record particularly in view of inter parties judgment dated 27.02.1974 Ex.P- 1/Annexure A-5. Finding of the Courts below is justified by the evidence on record, and is supported by reasons recorded by the Courts below. Lower appellate Court is the final Court of fact. Decision of the case rests on finding of fact as on who is in possession of the suit land. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely misconceived, frivolous, vexatious and devoid of any merit and is accordingly dismissed in limine.

08.09.2010 A. Kaundal ( L. N. MITTAL ) JUDGE