IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Regular Second Appeal No.2915 of 1988

Date of decision: 22^nd December, 2010

Sardar Singh

… Appellant

Versus

Mukesh Singh and another

… Respondents

CORAM:

HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Present:

Mr. Amar Singh Tewatia, Advocate for the appellant.

Mr. C.B. Goel, Advocate for the respondents.

KANWALJIT SINGH AHLUWALIA, J. (ORAL)

Present appeal has been filed by defendant to the suit.

Plaintiff-respondent Mukesh Singh instituted a suit for permanent

injunction, wherein he averred that he was in cultivating possession of the

suit land, the description whereof was given in the plaint, as a tenant at

will on 1/3^rd Batai since Kharif 1981. He further stated that defendant

No.2-Rikhi Raj, who has died during the pendency of the present appeal,

was owner of the suit land. It was pleaded that the appellant-defendant

No.1 was taking active steps to dispossess the plaintiff-respondent

forcibly and illegally from the suit land. The appellant-defendant No.1 to

the suit claimed title of the property through Rikhi Raj. It is his case that

Rikhi Raj had agreed to sell the property to him and had executed an

agreement to sell on 7^th October, 1981 and Rikhi Raj-defendant No.2 to

the suit had put the present appellant-defendant No.1 to the suit in

possession of the suit land.

Regular Second Appeal No.2915 of 1988

After completion of the pleadings, following issues were

formulated by the trial Court:

“1.

Whether the plaintiff is in possession of the suit

land, if so, to what effect? OPP

2.

Whether the suit is not maintainable in the

present form? OPD

3.

Whether the present suit is hit by the principle

of res-judicata? OPD

4.

Whether the plaintiff is not properly described in

the plaint regarding minority, if so to what effect? OPD

5.

Relief.”

The trial Court had not relied upon the testimonies of Ram

Mehar PW-1, Imrat PW-2 and Babu Singh PW-3. It further held that a civil

appeal was filed by Rikhi Raj-defendant No.2 to the suit against Sardar

Singh present appellant-defendant No.1 to the suit, wherein Rikhi Raj was

held to be in possession of the property. The plea raised by the plaintiff-

respondent that he was not party to the suit, was given no credence.

Hence, the suit of the plaintiff was dismissed.

Aggrieved against the same, the plaintiff-respondent filed an

appeal. The appellate Court below, relying upon the revenue record,

came to a conclusion that the plaintiff was in possession of 7 kanals and

11 marlas of land. It further relied upon the testimonies of Ram Mehar

PW-1, Imrat PW-2 and Babu Singh PW-3. However, the appellate Court

below held that the plaintiff was in possession of the property. To arrive at

this finding, a corroboration was sought from the testimonies of Bega

DW-4 and Sardar Singh DW-5. It further held that the judgment Ex.DX

was not binding upon the plaintiff.

In the present regular second appeal, the finding returned by

the lower appellate Court, which is purely based on appreciation of

evidence, is assailed.

2

Regular Second Appeal No.2915 of 1988

Counsel for the appellant has stated that the lower appellate

Court has held that the plaintiff-respondent is in possession of the suit

land partly.

This Court need not to divulge on this aspect, as both the

Courts below have held that in the judgment Ex.DX rendered by the

appellate Court, Rikhi Raj-defendant No.2 was held to be in possession of

the suit land.

Admittedly, the plaintiff-respondent was a tenant of Rikhi Raj

at will on 1/3^rd Batai. Once possession has not flown from Rikhi Raj to the

appellant, the possession of the plaintiff-respondent cannot be eclipsed,

as the same has passed from Rikhi Raj to him.

Hence, no interference is warranted in the present appeal

and the same is hereby dismissed, especially when no substantial

question of law arises for consideration of the Court.

[KANWALJIT SINGH AHLUWALIA]

JUD