Regular Second Appeal No. 4189 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 4189 of 2008 Date of Decision: 26.7.2011 Gram Panchayat Village Passina Khurd …Appellant Versus Sardara and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. D.D. Bansal, Advocate for the appellant. Mr. Jarnail Singh Saneta, Advocate for respondent No.1. Kanwaljit Singh Ahluwalia, J. (Oral) The present regular second appeal has been filed by defendant to the suit. The plaintiff/respondent Sardara had instituted a suit for declaration to the effect that he is owner in possession of a bara measuring 10 marlas which is half share of 1 kanal and the same falls in khasra No. 346 in village Passina Khurd, Tehsil Bhapoli, District Panipat and the appellant/defendant has no right, title or interest in the property and thus, they cannot demolish any part of the aforesaid Bara. Further, permanent injunction was also sought against defendants No.1 and 2 not to demolish any part of plaintiff's/respondent's wall and particularly the wall abutting rasta. It will be apposite here to reproduce para No.2 of the plaint: Regular Second Appeal No. 4189 of 2008 2 “2. That the plaintiff and defendant No.4 Babu Ram are the owners in possession of bara comprising in Khasra No. 346 measuring 1 marla in equal shares i.e. each having ½ share which comes to 10 marlas. The defendant No.4 has constructed his house on the portion falls towards southern side. Whereas the plaintiff has constructed a boundary wall, two rooms, bath room, latrine ove the suit property marked by letters ABCD fully detailed and described in the head note of the plaint. It is pertinent to mention here that the area of plaintiff's suit property is not complete and less than 10 Marlas at the spot...” It was further pleaded in the suit that the plaintiff/respondent had not encroached upon any part of the public path. Notice of the suit was issued. The present appellant/defendant Gram Panchayat, Passina Khurd, filed a written statement. They stated that the plaintiff has encroached upon the rasta shar-e-aam and the construction is not protected by any law. The trial Court, vide its judgment dated 16.11.2007, had dismissed the suit relying upon the stand taken by the Gram Panchayat that demarcation of the suit property was carried and the plaintiff/respondent was found to be in illegal possession of the area measuring 22 feet on the rasta shar-e-aam. Aggrieved against the same, plaintiff/respondent has filed an appeal, which was accepted by the lower Appellate Court, vide its judgment dated 20.8.2008. The lower Regular Second Appeal No. 4189 of 2008 3 Appellate Court has reversed the findings of the trial Court primarily for the reason that the Gram Panchayat had relied upon demarcation of khasra Nos. 364 and 365, whereas the plaintiff/respondent had taken a definite stand in the plaint and in the evidence that the demised premises falls in khasra No. 346. The lower Appellate Court further held that the sale deed Ex.P4 is also related to khasra No. 346. Jamabandi for the year 1998-99 also reveals the ownership and possession of the plaintiff/respondent over khasra No. 346. The lower Appellate Court further held that Aks Shajra Ex.P3 also depicts dimension of khasra No.346. It will be apposite here to reproduce the following findings returned by the lower Appellate Court:- “16...Instead of getting demarcation of Khasra No. 346, the Gram Panchayat has got conducted demarcation of Khasra No. 364. The copy of application Mark DA shows that application was moved by Jai Singh and Subhash before Naib Tehsildar, Bhapoli, to get conducted demarcation of Khasra No. 364(0-5) and 365 comprising in Khewat No. 456 min Khatuni No. 549 min. There is no reference with regard to conducting demarcation of khasra No. 346. On the said application, demarcation was conducted on 18.10.06 with regard to khasra No. 364 and 365. In the said report of demarcation submitted by Sadar Kanungo Panipat, there is no reference of Khasra No. 346. There is nothing on the record to show as to at any point of Regular Second Appeal No. 4189 of 2008 4 time demarcation was conducted of Khasra No. 346. The report of demarcation of Khasra No.364 and 365 cannot be made applicable to Khasra No. 346. If Sardara Ram, the present plaintiff was having illegal possession over khasra No. 364, it cannot be made applicable to all other khasra numbers also even if the plaintiff was owner of the other khasra numbers. The Gram Panchayat has not bothered to look into that demarcation relates to khasra No. 364 and the bara in dispute is khasra No. 346. Neither Khewat No. nor Khatuni nor Khasra No. are the same. It appears that Gram Panchayat is taking undue advantage of demarcation report against the plaintiff over khasra No. 364. This aspect of the matter has not been looked into either by the plaintiff or by the defendant or their counsels or the learned trial Court. The learned trial Court has wrongly observed that the plaintiff has been reported to be in illegal possession as per demarcation report dated 18.10.06 submitted by Sadar Kanungo, Panipat. From the copy of the sale deed Ex.P4 and copy of jamabandi for the year 1998-99 Ex.P2, it stands duly proved on the record that the plaintiff is owner in possession to the extent of half share in khasra No. 346 situated at village Passina Khurd, Tehsil Bhapoli, District Panipat. Issue No. 1 is with regard Regular Second Appeal No. 4189 of 2008 5 to the plaintiff being owner in possession of Bara measuring 10 M being half share of one Kanal marked by letters ABCD shown red in the site plan, comprising in Khasra No. 346 situated at village Passina Khurd, Tehsil Bhapoli, District Panipat. Since the plaintiff has succeeded in proving his ownership and possession to the extent of half share in land measuring 1 K 0 M comprising in Khasra No. 346, this issue is hereby decided in favour of the plaintiff and against the defendants. The findings of the learned trial Court on issue No.1 are hereby reversed...” Mr. D.D. Bansal, Advocate, appearing for the appellant/defendant Gram Panchayat has failed to refer to any part of the record wherefrom it is discernible that any demarcation of khasra No.346 was carried. Therefore, stand of the Gram Panchayat that the plaintiff/respondent has encroached upon the public rasta has not been proved. The Gram Panchayat had got conducted demarcation of khasra Nos. 364 and 365 wherein according to Gram Panchayat, there is a public passage. The plaintiff/respondent has nothing to do with khasra Nos. 364 and 365. Thus, no infirmity can be found with the findings returned by the lower Appellate Court which are based upon appreciation of the documents, brought on record by the plaintiff/respondent. Leaned counsel for the appellant/defendant has failed to Regular Second Appeal No. 4189 of 2008 6 convince this Court that any question of law, much less a substantial one, arises for consideration of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge July 26, 2011 “DK”