Dismissed

Dhan Singh v. Om Parkash and Ors.

Punjab & Haryana HC5 Aug 2009RSA/2423/2009

Case brief

AI extract

What is this about?

In this regular second appeal, the appellant challenged the dismissal of a suit for declaration and permanent injunction regarding property ownership. The High Court dismissed the appeal, holding that the appellant failed to prove his vendor's valid title and the lower courts' findings on facts were not liable to interference.

What did the court decide?

The Regular Second Appeal was dismissed with costs.

Dhan Singh Vs Om Parkash and Ors. — Partition | Punjab & Haryana HC (2009)

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Regular Second Appeal No. 2423 of 2009 1

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Regular Second Appeal No.2423 of 2009

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Date of decision: 05.08.2009

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Dhan Singh son of Ram Bhaj son of Sh. Mam Raj alias Mamli, r/o village Lohari, Sub tehsil Madlauda, District Panipat.

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..... Appellant.

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Versus

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1.Om Parkash son of Shri Baru, adopted son of Matu Ram, r/o village Lohari, Sub Tehsil Madlauda, District Panipat.

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2.Jai Kishan son of Sh. Hari Singh,

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3.Devi Singh son of Jai Kishan,

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4.Daya Nand son of Sh. Chattar Singh,

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All residents of village Lohari, Sub Tehsil Madlauda, District Panipat.

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..... Respondents.

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CORAM: HON'BLE MR. JUSTICE SHAM SUNDER

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Present:Mr. Sandeep Kotla, Advocate for the appellant.

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Sham Sunder, J.

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This Regular Second Appeal is directed against the judgment and decree

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dated 19.12.2008, rendered by the Court

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Regular Second Appeal No. 2423 of 2009 2

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of Civil Judge (Senior Division), Panipat, vide which the suit of the plaintiff was dismissed, and the judgment and decree dated 19.03.2009, rendered by the Court of Additional District Judge Panipat, vide which it dismissed the appeal.

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According to the plaintiff (now appellant), he purchased the house, in dispute, from defendant no.2, the father of defendant no.3, and uncle of defendant no.4, vide sale deed dated 22.10.1986. On 24.08.1979, defendant no.1 raised a dispute regarding tins house and a written compromise was effected. On 10.08.2001, defendant no.1 alongwith his supporters came to dispossess the plaintiff from the house, in question, but could not succeed. The defendants tried to take forcible possession of the house, in dispute, from the plaintiff. It was further stated that the defendants were asked many a time, to admit the claim of the plaintiff, but to no avail. On their

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Regular Second Appeal No. 2423 of 2009 3

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final refusal, to desist from their illegal designs, left with no alternative, a suit for declaration with consequential relief of permanent injunction was filed by the plaintiff.

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In the written statement and counter claim, filed by defendant no.1, it was stated that the suit property and the adjoining property were owned and possessed by Mattu son of Udha and after his death, he (defendant no.1) was legally inherited the same. It was further stated that the sale deed dated 22.10.1986, said to be executed by Jai Kishan, in favour of the plaintiff, was illegal, null and void as he was not the owner of the same. It was further stated that since Jai Kishan was neither the owner nor in possession of the property, in dispute, he could not pass on a better title, in favour of the plaintiff, than he himself had got therein. It was further stated that earlier the plaintiff filed a suit with regard to khasra no. 430/1, wherein, the

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Regular Second Appeal No. 2423 of 2009 4

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sale deed was not set up and, ultimately,

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that suit was dismissed. It was further stated that defendant no.1, was in possession of the property, in dispute, and never entered into compromise with the plaintiff. It was further stated that the Sub Divisional Magistrate visited the spot and found that the sale deed was illegal. The remaining averments, contained in the plaint, were denied, being wrong.

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From the pleadings of the

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parties, the following issues were framed

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by the trial Court :-

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“1- Whether the plaintiff is owner in possession of dismantled house detailed and described in the head note of the plaint ?OPP

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2- Whether the plaintiff is entitled for consequential relief of permanent injunction on the grounds as alleged in the plaint ?OPP

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3- Whether the suit is not maintainable in the present form ? OPD

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Regular Second Appeal No. 2423 of 2009 5

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4- Whether the plaintiff has no locus standi to file the present suit ? OPD

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5- Relief.”

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The parties led evidence, in

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support of their case. The trial Court,

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after hearing the Counsel for the parties, and, on going through the evidence and record of the case, dismissed the suit of the plaintiff.

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Feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was also dismissed by the Court of Additional District Judge Panipat, vide its judgment and decree dated 19.03.2009.

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Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/plaintiff.

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I have heard the Counsel for the appellant, and have gone through the documents, on record, carefully.

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The Counsel for the appellant submitted that the plaintiff (now appellant) purchased the property, in

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Regular Second Appeal No. 2423 of 2009 6

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dispute, vide sale deed dated 22.10.1986, from Jai Kishan, defendant no.2, who was the owner thereof. He further submitted that the plaintiff (now appellant) came into possession of the property, in dispute, on the basis of said sale deed. He further submitted that the Courts below wrongly held that he was not the owner in possession of the property, in dispute, as Jai Kishan was not the owner and he could not sell the same, in his favour. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside.

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10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair

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Vs. Bhaskar Pillai (2005) 10, SCC, 533,

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Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT

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Regular Second Appeal No. 2423 of 2009 7

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2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The entire controversy revolved around the sale deed dated 22.10.1986, allegedly executed by Jai Kishan, defendant no.2, (now respondent no.2), in favour of the plaintiff (now appellant). The property

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comprised two dismantled rooms. It is evident from the judgments of the Courts below that the plaintiff failed to prove that his vendor was having a legal and valid title, in respect of the property, in dispute, so as to enable him to sell the same in his (plaintiff) favour, vide the sale deed, referred to above. It is evident from the record, that the dispute, was referred to the Sub Divisional Magistrate, but the plaintiff (now appellant) did not show the sale deed, in question, to him, at the relevant time. The concurrent findings of fact, recorded by the Courts below, that the plaintiff miserably failed to prove that his vendor was having a valid title in the property, in dispute, and as such, he was competent to pass the same, in his favour; that due to this reason,on the basis of the sale deed, Ex.P-2, the plaintiff did not become the owner in possession of the property, in dispute; and that, as such, the plaintiff was not entitled to the declaration and permanent

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Regular Second Appeal No. 2423 of 2009 9

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injunction, prayed for, being based on the

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correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference by this Court. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

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No question of law, much less substantial, arises in this appeal, for the determination of this Court.

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For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs.

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05.08.2009, dinesh

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( Sham Sunder ) Judge

Dhan Singh v. Om Parkash and Ors.

Case brief

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Dhan Singh v. Om Parkash and Ors.

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