Gurdev Singh vs Harbans Singh

Sat Pal, J.

This appeal is directed against the judgment dated 13th September, 1997, passed by Additional District Judge, Fatehgarh Sahib. By this judgment the learned District Judge has upheld the judgment passed by the Addl. Senior Sub Judge, Fatehgarh Sahib dated 6th December, 1995.

Mr. Sandhir, learned counsel appearing on behalf of the appellant submits that the point raised in the suit which has given rise to the present appeal could not have been adjudicated by the civil court as the civil court had got no jurisdiction. In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in Gurcharan Singh v. Kamla Singh and others, (1976) 2 SCC 152. I, however, do not find any merit in the contention of the learned counsel for the appellant, as this point was neither raised by the appellant in the written statement nor any issue was framed. The point involved in this case with regard to the jurisdiction is of both facts and law and unless facts have been pleaded in the written statement, this point cannot be now raised in the second appeal. Since the point involved is both of facts and law, the judgment in the case of Gurcharan Singh (supra) is not applicable to the facts of the present case.

Further, from Para 10 of the judgment dated 13.9.1997, passed by the learned Addl. District Judge, I find that the findings of the courts below are based on the evidence of PW.1 and PW.2 and both these witnesses have been thoroughly crossexamined but the defendants/appellants could not prove anything to the contrary. The concurrent findings of the Courts below are that the portion of the land comprising Khasra No. 92 which is a passage has been encroached upon by the defendant.

In view of the concurrent findings of the courts below, I do not find any merit in this petition. The findings given by the courts below are based on legal and valid evidence. Accordingly, the appeal is dismissed.