IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2918 of 2009 (O&M) Date of Decision : 5.5.2010 Sunder Dass ....Appellant Versus Girdhari Lal and another ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Rajesh Arora, Advocate for the appellant. ..... MAHESH GROVER, J. C.M.No.8699-C of 2009 Allowed as prayed for. R.S.A.No.2918 of 2010 The plaintiff is in second appeal. He had filed a suit for permanent injunction against the defendant-respondent pleading that he along with his two brothers was allotted evacuee property No.87 situated within the area of village abadi of Dhankot, Tehsil and District Gurgaon. The property measures 4751 square feet. He demonstrated the dimensions of the property with the help of a site plan and pleaded that the area shown in green was constructed and the area shown in red was left for tying cattle. The area depicted in red is the cause of dispute between the parties. The defendant-respondent denied the averments made in R.S.A.No.2918 of 2009 (O&M) -2- the plaint in so far as the encroachment made by him is concerned. In so far as interference in the property of the appellant is concerned, he pleaded that he was owner in possession of property No.90 which was also an evacuee property and further pleaded that the property bearing No.87 consists of three parcels and the plaintiff/appellant has not intentionally mentioned the third parcel which was towards the southern side of the property shown by letters ABFE and as such the site plan produced by the plaintiff-appellant was incorrect. It was further pleaded that the property shown in red was owned and possessed by the defendant-respondent over which the appellant has got no right. It was also denied that the appellant was ever using this portion for tethering cattle etc. The parties went to trial on the following issues :- 1. Whether the plaintiff and his brothers were allotted evacuee property bearing no.87 vide Sanad no.1 dated 29.12.1958?OPP 2. Whether the land in dispute (i.e. The red portion shown by letters CDEF in the map attached) was allotted to the plaintiff and his vide Sanad no.1 dated 29.12.1958?OPP 3. Whether the plaintiff is owner in possession of red portion shown by letters CDEF in the map attached with the plaint?OPP 4. Whether the plaintiff has no locus-standi to file the present suit?OPD 5. Whether the plaintiff has not come to the Court with R.S.A.No.2918 of 2009 (O&M) -3- clean hands and has suppressed the true and material facts from this Court?OPD 6. Whether the plaintiff is estopped from filing the suit by his own acts, conduct and acquiescence?OPD 7. Whether the plaintiff has no cause of action to file the suit?OPD 8. Whether the suit is not maintainable in the present form?OPD 9. Whether the plaintiff is entitled to a decree of permanent injunction against the defendant restraining him from interfering in peaceful possession or dispose of the suit land?OPD 10. Relief. Both the Courts concluded that the appellant had failed to show that he was in possession of the disputed area reflected as red in the site plan and also concluded that there are two distinct properties, one belonging to the appellant and the other belonging to the defendant-respondent and on the failure of the appellant to establish his case the suit was dismissed. In second appeal learned counsel for the appellant contended that during the course of proceedings in appeal he had moved an application under Order 41 Rule 27 and Order 26 Rule 9 and Section 151 CPC for appointment of Local Commissioner to carry out the demarcation so as to prove his case which application was wrongly declined and this has caused serious prejudice to his case. He has further contended that the findings recorded by the R.S.A.No.2918 of 2009 (O&M) -4- Courts below are unsustainable in the eyes of law being perverse and contrary to the facts. I have heard the learned counsel for the appellant and have perused the impugned judgments. The appellant has laid a claim to a small portion of the area which was depicted as red in the site plan and pleaded that he was using the same as it was a part of the property that he had purchased. However, if the evidence on record is to be seen, the appellant has miserably failed to establish such a plea. Rather, the material witness that he produced failed to support his case. There is a categoric admission by a witness produced by the appellant that plot No.90 belonging to the defendant-respondent was situated on the eastern side of their property and that there was a wall shown in the site plan Ex.P4 as EF which was 6' in height and there was no door or window in the said wall. He further testified that there was no animal shed constructed by the appellant in the suit property. The draftsman (PW5), who prepared the site plan also admitted that EF was a complete wall. On the basis of this the Courts below derived a conclusion that the appellant had constructed a 6 ft. wall in between his property and the part of the property belonging to the defendant- respondent. There is no evidence to show that he was in possession of the red portion. He also failed to demonstrate that the disputed portion was a part of the property that he had purchased. The grievance of the appellant that the application under Order 41 Rule 27 and Order 26 Rule 9 and Section 151 CPC is also erroneous. It is not a matter of right that an application for that purpose should be answered by the R.S.A.No.2918 of 2009 (O&M) -5- Courts in favour of the person who moved such application. The applicant invoking these provisions has to show as to what prevented him from moving such application with promptitude, more so when the entire case rests on the identification of the property and its dimensions. In any eventuality, the pure question of fact which has been determined by the Courts below cannot be interfered with in a regular second appeal, more so when no substantial question of law arises for the consideration of this Court. No ground to interfere. Dismissed. 5.5.2010 (MAHESH GROVER) JUDGE dss