R.S.A.No. 1951 of 2011(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1951 of 2011(O&M) Date of decision: 12.5.2011 Shyam Dev ......Appellant Versus M/s RPS Associates and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.P.K.Bhardwaj, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for permanent injunction. The case of the plaintiff, in brief, was that he was in actual and physical possession of the land in dispute marked by letters ABCDEFGH in the site plan measuring 369 square yards consisting of 14 rooms and 2 shops. Defendant No.1 was the owner of the said premises. Plaintiff was a tenant under defendant No.1 on annual rent of ` 1,200/- excluding water and electricity charges. The boundaries of the tenanted premises as disclosed in para 2 of the judgment of the trial Court are as under:- “East : House of Sh.Pappu Dhobi road & Pukhta Road West : Khai R.S.A.No. 1951 of 2011(O&M) 2 North : Premises of Kapoor South : Premises of Ishwar Singh son of Indraj” The plaintiff had been paying the rent and electricity bills regularly. On 6.10.2004 and 10.10.2004, defendants along with some other persons came to the tenanted premisses of the plaintiff and tried to dispossess him forcibly but had failed to do so. Defendants No.1 (a) and 1 (b) were proceeded ex pare before the trial Court vide order dated 25.10.2005. Defendant No.2, in his written statement, averred that the plaintiff was in unauthorised possession of the suit property. The defendant had purchased the land measuring 200 kanals bearing khasra No.41//1 to 25 from M/s Indo Austro Corporation Private Limited vide sale deed dated 1.9.2003. Thereafter, the answering defendant had become lawful owner in possession of the suit land. On the North East corner of the land an unauthorised construction had been raised and by way of the present suit, plaintiff wanted to create rights in his favour qua the said unauthorised construction. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP. 2. Whether the plaintiff has no cause of action to file the present suit ? OPD 3. Relief.” The trial Court vide judgment and decree dated 22.9.2010 decreed the suit of the plaintiff and defendants were restrained from ejecting the plaintiff from the suit property except in due course of R.S.A.No. 1951 of 2011(O&M) 3 law. Aggrieved by the said judgment and decree, defendant No.2 preferred an appeal and the same was partly allowed vide judgment and decree dated 14.1.2011 passed by the Additional District Judge. It was held that the plaintiff was not entitled to injunction sought by him with respect to the portion which was in his unauthorised possession bearing khasra No.41//1 shown in red colour in the report of the Local Commissioner dated 25.5.2010. The plaintiff was already entitled to protect his possession qua the property which did not bear khasra No.41//1. Hence, the present appeal by the plaintiff. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The plaintiff had claimed that he was in possession of the suit property marked by letters ABCDEFGH in the site plan measuring 369 square yards consisting of 14 rooms and 2 shops. The plaintiff claimed that he was a tenant under defendant No.1. On the other hand, the case of defendant No.2 was that he was owner in possession of land measuring 200 kanals bearing khasra No. 41//1 to 25 in pursuance of sale deed dated 1.9.2003 Ex.D-3. As per Ex.D-2, jamabandi for the year 2000-01, property measuring 200 kanals bearing khasra No.41//1 to 25 was owned by M/s Indo Austro Corporation Private Limited, Sarai Khawaja. Mutation, Ex.D-5, was also sanctioned in favour of defendant No.2 in view of sale deed Ex.D-3 executed by M/s Indo Austro Corporation Private Limited in favour of defendant No.2. An application was moved by defendant No.2 before the trial Court seeking demarcation of the suit property. The Local R.S.A.No. 1951 of 2011(O&M) 4 Commissioner gave his report dated 25.5.2010 in pursuance of order passed by the trial Court on 14.5.2010. The report of the Local Commissioner is Ex.D-6. Learned Additional District Judge, in its judgment, has observed that as per the report of the Local Commissioner, the suit property was demarcated and it was found that a portion bearing khasra No. 41//1 owned by defendant No.2 measuring 27' x 14' had been encroached by the plaintiff. Admittedly, the memo of presence is duly signed by the plaintiff. Hence, the demarcation was conducted by the Local Commissioner in the presence of the plaintiff. The plaintiff had failed to produce the Local Commissioner in the witness box to challenge the veracity of the report submitted by him. In these circumstances, the learned first Appellate Court rightly held that the report of the Local Commissioner was liable to be read in evidence as the Local Commissioner had been appointed by the Court. The plaintiff, on the other hand, had failed to substantiate that the encroached portion was part of khasra No.34//21 belonging to Gurukul Indraprashtha. In these circumstances, learned first Appellate Court rightly held that the plaintiff could not be permitted to protect his possession qua the encroached portion. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 12, 2011 anita