Appellate courts cannot interfere with factual findings established by lower courts unless substantial legal errors are demonstrated.

JUDGMENT :

Nidhi Gupta, J.

CM-7900-C-2022

Prayer in this application filed under Section 151 CPC is for condonation of delay of 58 days in refiling the accompanying appeal.

2. Heard.

3. For the reasons mentioned in the application which is duly supported by an affidavit of learned counsel for the applicant/appellant, the same is allowed and delay of 58 days in refiling the appeal is condoned.

RSA-2275-2022 (O&M)

Present Second Appeal has been filed by the defendant against the concurrent judgments and decrees of the learned Courts below whereby suit filed by the plaintiff/respondent for permanent injunction, has been decreed by both the Courts below.

2. It is inter alia submitted by learned counsel for the appellant that the suit of the plaintiff could not have been decreed as the plaintiff had failed to establish her title. It is submitted that simple suit for permanent injunction is not maintainable because there is dispute of title of the parties of the property in question. As such, plaintiff ought to have filed suit for declaration. Moreover, the learned Courts below have relied upon inadmissible false document i.e. Mark B report made by the Police Officer. It is contended that the said report is totally inadmissible in evidence and has not even been proved in accordance with law. It is settled law that the criminal finding is not binding on the civil Court. It is further submitted that injunction in favour of the plaintiff could not in any event, be granted as the plaintiff had failed to prove her possession over the suit house. The plaintiff herself has admitted that she is not residing in the village Bhakhariana where the property is situated. Thus, possession of the plaintiff over the suit property was not proved as per her own evidence. It is well settled law that plaintiff has to prove her possession on the date of filing of the suit. However, in view of the above said fact, that possession of plaintiff was not admitted, suit could not have been decreed.

3. It is further submitted by learned counsel for the appellant that in the present case, respondent/plaintiff alleged that earlier Gian Singh, father of the plaintiff, was the owner in possession of the property in dispute and after his death, his legal heirs have become the owner of the property in dispute but the plaintiff has not proved on the record that Gian Singh was the owner in possession of the property in dispute. No such document proved by the plaintiff which shows the possession on the property in dispute. Moreover, suit was filed by the plaintiff Kulwinder Kaur alone and no other legal heirs had come forward.

4. It is also submitted that the present suit was barred by res judicata under Order 2 Rule 2 CPC. It is accordingly prayed that the present Second Appeal be allowed; and the impugned judgments and decrees of the learned Courts below be set aside.

5. No other argument is raised on behalf of the appellant. I have heard learned counsel and perused the case file in great detail. I find no merit whatsoever in the submissions made by learned counsel for the appellant.

6. Perusal of the record of the case shows that the plaintiff had filed a Suit for Permanent injunction restraining and prohibiting the defendants or anybody else acting on his behalf or her attorney from forcibly demolishing/damaging the existing construction in the property in dispute and/or further raising construction forcibly over the same as shown red in the site plan. It was the pleaded case of the plaintiff that she is owner in possession of suit property being legal heir of Gian Singh/original owner of suit property. Gian Singh had died, and he left behind one son, namely, Jaswinder Singh and two daughters, namely, Rajwinder Kaur and Kulwinder Kaur (present plaintiff). As such, plaintiff is in possession of suit property being legal heir. No partition had ever taken place between the legal heirs. There are 2 rooms existing in the property in question which are in damaged condition. It was pl