RSA No.1204 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1204 of 2011(O & M) Date of Decision: 14.03.2011. Yogesh ……Appellant Versus Khushi Ram …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. B. R. Vohra, Advocate for the appellant. L.N. MITTAL, J (ORAL) Defendant-Yogesh has filed the instant second appeal, having failed in both the Courts below. Respondent-plaintiff-Khushi Ram filed suit against defendant-appellant for possession of 8 marlas land i.e 2 marlas out of killa No.127/14 and 6 marlas out of killa No.127/15 alleging that the plaintiff is owner of land of aforesaid killa numbers, but on demarcation, it was found that defendant had encroached upon 8 marlas land of the plaintiff out of land of aforesaid killa numbers. Defendant is thus in unauthorized possession of the suit land belonging to the plaintiff. Hence the suit. RSA No.1204 of 2011 (O & M) - 2 - The defendant did not deny the ownership of the plaintiff over the suit land of killa Nos.127/14 and 127/15, but pleaded that defendant had not encroached upon any part of the suit land. The defendant alleged that he is in possession of his own land only. The defendant pleaded that plaintiff’s land lies on northern side of the canal whereas defendant’s land lies on southern side of the canal and, therefore, the question of encroachment by the defendant on plaintiff’s land did not arise. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gohana vide judgment and decree dated 11.05.2009 decreed the plaintiff’s suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Sonepat vide judgment and decree dated 30.11.2010. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that there is water course between the lands of the parties and the land of the plaintiff lies on northern side of the water course whereas land of the defendant lies on southern side of the water course and, therefore, question of encroachment by defendant on plaintiff’s land did not arise. It was pointed out that in demarcation made on 13.01.2001 by Sanjay Bishnoi, Naib Tehsildar DW-4, water course RSA No.1204 of 2011 (O & M) - 3 - was found to exist in plaintiff’s land and there was no encroachment by defendant on the plaintiff’s land. It was pointed out that plaintiff filed suit against State for possession of the land encroached upon by the State and thereupon the Local Commissioner was appointed in that suit and the said Local Commissioner Ramphal, office Kanungo PW-2 vide his report dated 25.03.2006 reported the existence of water course on plaintiff’s land and also reported that the defendant had also encroached upon 8 marlas land in suit belonging to the plaintiff, but the said report was made in the absence of defendant and, therefore, the same cannot be used against the defendant. I have carefully considered the aforesaid contentions, but in the facts and circumstances of the instant case, the said contentions cannot be accepted. Insofar as demarcation report dated 13.01.2001 made by Sanjay Bishnoi DW-4 is concerned, Courts below have rightly observed that at that time, no encroachment by defendant on plaintiff’s land might be in existence, but at the time of subsequent demarcation on 25.03.2006 after five years, encroachment by defendant on plaintiff’s land measuring 8 marlas was found and this change in state of affairs might have taken place during the interregnum of five years. Even after considering report dated 13.01.2001 relied on by the defendant, in view of subsequent demarcation dated 25.03.2006, it cannot be said that the defendant has not made encroachment on suit land belonging to the RSA No.1204 of 2011 (O & M) - 4 - plaintiff. The water course also lies through the land of the plaintiff as per both the aforesaid demarcation reports including the report relied on by the defendant. However, the defendant has encroached upon the land of the plaintiff lying towards south of the water course. It appears that the water course was made pucca during the intervening period of the two demarcation reports and change in the state of affairs took place at the spot during the said period. Plaintiff moved application in the trial Court for appointment of Local Commissioner for making demarcation of the land of the plaintiff, but the defendant opposed the said application. In this view of the matter, it does not lie in the mouth of defendant- appellant that demarcation report dated 25.03.2006 should not be relied upon as the same was made in his absence. The plaintiff wanted fresh demarcation in the presence of both the parties, but the defendant opposed the same. Consequently, for this reason, adverse inference would arise against the defendant and demarcation report dated 25.03.2006 has been rightly relied upon by the Courts below. The plaintiff could do nothing more to depict encroachment on his suit land by the defendant, but the defendant instead of getting fresh demarcation to depict that he had not made any encroachment on plaintiff’s land, even opposed the plaintiff’s prayer for fresh demarcation. Concurrent finding of fact recorded by both the Courts below that defendant has encroached upon suit land measuring 8 marlas belonging to the plaintiff is, therefore, justified by RSA No.1204 of 2011 (O & M) - 5 - the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently the said finding recorded by both the Courts below does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal lacks any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 14.03.2011 A.kaundal