R.L. Anand, J.

1. There is delay of 80 days in refiling the appeal which is hereby condoned.

2. On merits, 1 have heard the learned counsel for the appellants and with the his assistance, have gone through the record of the case.

3. The unsuccessful plaintiffs have filed the present appeal which has been directed against the judgment and decree dated 23rd February, 2001 passed by the Court of Additional District Judge, Jagadhri who affirmed the judgment and decree dated 17th August, 1998 passed by the Court of Additional District Judge (Senior Division), Jagadhri, who dismissed the suit of the plaintiffs for permanent injunction.

4. Some facts can be noticed in the following manner;

The plaintiffs filed a suit for permanent injunction alleging that they are owners in possession of the suit property marked as ABCD in the site plan, measuring 61" x 22" along with construction raised thereupon, situated at village Malakpur Bangar, by virtue of registered sale deed for a valuable consideration but the defendants are adamant to dispossess the plaintiffs from the suit property illegally and forcibly, of which they have no right, title, interest or concern whatsoever. The suit was contested by the defendants. They pleaded that they are owners in possession of the suit property since the time of their ancestors and they are using the same for tethering their cattle and for storing fuel wood and fodder etc. The alleged sale deed in favour of the plaintiffs in null and void, nonest, inoperative, non-existent and not binding upon the defendants. The plaintiffs have no locus standi to file the present suit because they are neither owners nor in possession of the suit property and the present suit is not maintainable.

5. The plaintiff filed a rejoinder denying the averments of the written statement while reiterating that of the plaint. From the pleadings of the parties, the trial Court framed the following issues:

1. Whether, the plaintiffs are owners in possession over the suit property OPP

2. Whether the plaintiffs have no locus standi to file the present suit OPD

3. Whether the suit is not maintainable in the present form OPD

4. Whether the plaintiffs have concealed the true facts from the Courts, if so, to what effect OPD

5. Whether the defendants are entitled for special costs under Section 35-A C.P.C. OPD

6. Relief.

6. The parties were afforded opportunity to lead evidence and vide judgment and decree dated 17th August, 1998 the learned Civil Judge (Senior Division), Jagadhri dismissed the suit of the plaintiffs. Not satisfied with the judgment and decree of the trial Court, the plaintiffs filed first appeal before the Court of the learned Additional District Judge, Jagadhri, who dismissed the appeal mainly for the reasons given in para No. 8 of the impugned judgment, which are reproduced as follows:

"At the very outset it is worth while to mention here that the present is a suit for permanent injunction seeking restraining the defendants from interfering into possession of the plaintiffs over there. But plaintiff No. 1 Pushpa Rani as P.W. 2 has admitted in her cross-examination that Jai Kumar (defendant) tethers his calf over the suit property and the defendants forcibly cut their fodder in the chhan which is in existence over the suit property. Even plaintiff Pushpa Ranis mother Krishna Devi as P.W. 4 who has stated in her examination-in-chief that she had sold the suit property to her son-in-law Madho Ram (PW1) vide sale deed Exhibit P-l has first stated in her cross-examination that the Chhappar over the suit property was of the plaintiffs and the defendants are not in possession over the suit property, but she has then added that the defendants have forcibly led to this dispute and thereby she has impliedly stated that the defendants have forcibly entered into possession over the suit property. However, she (Krishna Devi) as P.W. 4 has clearly admitted in her cross-examination that her ration card and vote is in Bilaspur and they (she and the plaintiffs and her son-in-law) Madho Ram (husband of plaintiff No. 1) have never lived in village Malakpur Bangar. That being so when the plaintiffs side had never resided in village Malakpur Bangar where the suit property is situated, naturally there could be no occasion for the plaintiffs to put their grass etc. in the suit property and to tether their cattle over there. But as evident from the report of Local Commissioner Ex. D. 3 read with the site plan Ex. D. 5 prepared by the Local Commissioner, who had been appointed through the lower Court vide its order dated 15.12.1990, who visited the site in the presence of the parties as per presence-sheet Ex. D.4, she-buffalo (Katri) was found tied with a peg (Khunta) in the suit property where fodder was also found lying in the Chhan situated on the eastern part of the suit property and the defendants told the Local Commissioner that the fodder and she-buffalo belong to them. Keeping in view that the plaintiffs never had their residence in village Malakpur Bangar where the suit property is situated the she-buffalo and the fodder in the Chhan over the suit property are obviously of the defendants. Such being the situation, the authority Dhoom Singh v. Baisakhi Ram and others , cited by learned Counsel for the appellants-plaintiffs, that where the Local Commissioner who was assigned the duty for limited purpose to see the condition of the site in question but who has exceeded his jurisdiction the sanctity of his report has been lost and it cannot be read for the purpose of disadvantage of the parties against whom it does not, therefore, help the appellants-plaintiffs of the present case because vide order dated 15.2.1990 passed by the learned lower Court the Local Commissioner (Rao Nisar Ahmad, Local Advocate) was appointed to vist the spot and to report about the existing position of the suit property and so while giving the possession of the suit property as found by him the mere mention therein that the defendants claim the she-buffalo found tied there and the fodder found lying in the chhan i.e. room having thatched roof belonging to him does not make his report inadmissible, more so when the said mention is found correct from the own admission of plaintiff-Pushpa Rani as P.W. 1 discussed above, and also from the photographs Ex. D. 3 to D.7 of which negatives are Ex. D.8 to D.13 which are proved from the testimony of D.W. 4 Satish Kumar which show the presence of defendants side over there, meaning thereby that possession over the suit property is of the defendant."

7. Still not satisfied, the present regular second appeal.

8. I have heard Shri Kamal Sharma, learned Counsel appearing for the appellant-plaintiffs and with his assistance, have gone through the record of the case. Repeatedly it has been held by the Honble Supreme Court that concurrent findings of fact which are based on proper appreciation of evidence cannot be disturbed by the High Court in the regular second appeal, as this Court can only entertain appeal on a question of law. After going through the judgments of both the courts below I am convinced that no specific question of law is involved. Faced with this difficulty, the learned Counsel for the appellants submitted that it was wrong appreciation of evidence by both the courts below. Mr. Sharma also submitted that it is established on record that the plaintiffs are owners of the property. In support of his contention, the learned Counsel for the appellants has relied upon Shanta Juneja and others v. Suresh Chand and others 2001(1) C L J 218 and Mai Dayal and another v. Khusi Ram and another 2001 129 P.L.R. 233. In my considered opinion both the judgments are off the track. At the cost of repetition I want to refer to the statement of Smt. Pushpa Rani plaintiff who appeared as P.W. 2. Her cross-examination has also been read with the assistance rendered by the learned Counsel for the appellants. Reading of her statement would clearly show that the defendants are exercising their possession over the property in question by tethering their cattle. This aspect of the case has been admitted by the plaintiff herself. She has further admitted that the defendants had forcibly taken possession of the chhan when they store fodder. Not only this property was purchased by the plaintiffs from Smt. Krishna Devi who is none else but the mother of plaintiff No. 1 Pushpa Rani. Even she admitted in her cross-examination impliedly with regard to the possession of the defendants. The crucial point for determination is as to whether the plaintiffs have been able to prove their established possession or not. The onus was upon the plaintiffs to say that they were in established possession. Finding of the court below are that, in fact, the plaintiffs are not residing in this village. The plaintiffs have not placed on record any ration card or the voter list to prima facie show that they are the residents of village Malakpur where the suit property is situated. Even no respectable of village Malakpur such as, Lambardar or Sarpanch has been examined to establish the possession of the plaintiffs. When the possession is not established on the date of the institution of the suit, it is not maintainable.

9. Resultantly, the suit of the appellants/plaintiffs has been rightly dismissed by the Courts below. I do not see any merit in this appeal. Dismissed.