IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 4941 of 2009 (O. & M.) Date of Decision: 06.01.2010 Smt.Atri. ....... Appellant. Versus Chander. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Balwinder Singh, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 29.7.2008 and 21.11.2008 passed respectively by the Additional Civil Judge (Senior Division), Nuh (hereinafter described as `the trial Court') and the Additional District Judge, Nuh (referred to hereinafter as `the first appellate Court'). It is accompanied by C.M.No.14624-CII of 2009 in which a prayer under Section 5 of the Limitation Act for condonation of 298 days' delay in its filing, has been made. The appellant herein is the plaintiff, who had filed a suit for R.S.A.No.4941 of 2009 (O&M) -2- .... permanent injunction alleging that she is co-owner of the land which has been described in the plaint out of which some portion was sold by various sale deeds through Shri Khursheed, holder of her power of attorney; that the said power of attorney was cancelled on 11.1.2005 after the sales had been effected; that the defendant-respondent was a stranger to the land in question and was threatening to occupy the northern-western portion of Rect.No.22, Killa No.16/1 to the extent of 1 kanal illegally and unauthorizedly; that he had laid foundation up to the D.P.C. Level and, therefore, he should be injuncted from carrying on his activities on the portion of the land to which he has no right,title or interest. The respondent, on appearance, pleaded that the appellant had sold out her entire holdings to different vendees by various sale deeds and that he had raised construction on the land bearing Rect.No.23, Killa No.27 (0-10) which was purchased by Shri Ghisdu, his grand-father from one Tikam Ram vide registered sale deed dated 29.5.1973; that the construction was being raised over the said land after getting the site plan sanctioned from Municipal Committee, Nuh and that the appellant had no concern with the suit property on which he was raising construction. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is in possession of the suit land detailed in para 1 of the plaint as alleged?OPP 2. If issue no.1 is proved, whether the plaintiff is entitled to the relief of injunction as prayed for?OPP R.S.A.No.4941 of 2009 (O&M) -3- .... 3. Whether the plaintiff has no cause of action to file the present suit?OPD 4. Whether the suit is not maintainable?OPD 5. Whether the plaintiff has concealed the true and material fact from the Court, if so to what effect?OPD 6. Whether the suit is bad for non-joinder of necessary parties?OPD 7. Whether the plaintiff is liable to pay special costs u/s 35-A of CPC?OPD 8. Relief. After appraisal of entire evidence on record, the trial Court dismissed the suit of the appellant and in appeal, the first appellate Court affirmed the findings recorded by it. It was held by both the Courts below that the appellant had failed to establish the unauthorised occupation of the respondent on killa no.16/1 as was pleaded by her. However, both the Courts noticed on the basis of the demarcation which was carried out during the trial, that encroachment on 29-1/2 square yards by the respondent stood indicated, but finding no prayer or pleadings to that effect, declined to interfere. Aggrieved by the aforesaid findings of the Courts below, the appellant has filed this appeal. It has been contended by the learned counsel for the appellant that the Courts below have failed to appreciate the evidence on record and that the demarcation was not carried out in accordance with law and it is on R.S.A.No.4941 of 2009 (O&M) -4- .... this account that the encroachment by the respondent on killa no.16/1 was not established. He submitted that the findings recorded by the Courts below are perverse in view of the aforesaid fact. Learned counsel for the appellant further contended that according to him, the following law points arise for consideration of this Court in the present appeal:- 1. Whether the appellant/plaintiff was entitled to the declaration prayed for in the suit? 2. Whether the Ld. Trial Court was justified in rejecting the claim of the appellant/plaintiff that as per the demarcation carried out on 24.02.2005 under the order dated 20.01.2005 passed by the Ld. Assistant Collector IInd Grade,Nuh the respondent/ defendant had encroached upon 29-1/2 sq.yds. of land belonging to the appellant/plaintiff? 3. Whether the Ld.Courts below were justified in not directing the Local Commissioner to demarcate the land as per the provisions mentioned in para 19 of the judgment dated 29.07.2008 for proper demarcation of the land as per law? I have heard the learned counsel for the appellant and have perused the impugned judgments, as also the copies of the plaint and the written statement which were produced before this Court at the time of hearing. The sole case of the appellant is that the respondent was seeking to raise construction over killa no.16/1 upon which he has no right, title or interest. The respondent, in turn, had also denied that he had R.S.A.No.4941 of 2009 (O&M) -5- .... anything to do with killa no.16/1 of rect.No.22 and rather, confined his case only to the portion which his ancestor had purchased vide sale deed, Exhibit D1. The said sale deed was confined to 10 marlas of land comprised in killa no.27, rect.no.23 and 2 marlas of land compromised in killa no.20 of rect.no.23. There is no evidence on record to show that any encroachment or interference had been carried out by the respondent over killa no.16/1 which was the specific pleaded case of the appellant. In this view of the matter and in the absence of any material on record, the findings of the Courts below cannot be termed to be erroneous or perverse so as to warrant any interference in the Regular Second Appeal. It was for the plaintiff, who had approached the Court with a specific plea as noticed above, to have proved that there was, indeed, any encroachment carried out by the respondent over the disputed land. Learned counsel for the appellant objected to the demarcation report of the Local Commissioner on the ground that it was not carried out in accordance with law and has also relied upon the observations of the Courts below that indeed, it was not carried out in accordance with the procedure contemplated in Chapter-I- M of Volume-I of the High Court Rules and Orders. Even if this contention is to be accepted, the respondent cannot be said to have encroached upon any portion of land comprised in killa no.16/1 in view of the admission of the appellant herself while executing general power of attorneys vide vasika Nos. 53/4 and 54/4 in favour of one Khursheed wherein she had specifically stated that out of 6 kanals 16 marlas of land, one kanal of land had been given to Chander- respondent, R.S.A.No.4941 of 2009 (O&M) -6- .... thereby admitting his possession over the said land. That apart, the Local Commissioner, who was appointed to go into the demarcation, was denied cooperation by the appellant when he went to the spot. In the considered opinion of this Court, therefore, the appellant had failed to establish her case that the respondent had encroached upon killa no.16/1. It was then contended by the learned counsel for the appellant that a prayer for mandatory injunction had also been made in which it had been pleaded that the respondent had encroached upon the disputed land during the pendency of the suit. No such material exists on record from where an inference to that effect can be drawn. Besides, it was the pleaded case of the appellant that the construction had been raised by the respondent up to the D.P.C. Level in killa no.16/1. To substantiate this plea also, no evidence had been produced by her. Looking at it from any angle, the appellant, who had filed the suit for permanent injunction, had miserably failed to prove her case and consequently, the findings recorded by the Courts below cannot be interfered with. The questions of law that have been sought to be raised in the instant appeal, therefore, do not arise for consideration of this Court in view of the discussion which has been detailed above. That apart, the appeal has been filed after a delay of 298 days and the same has not sufficiently been explained. The reason given for delay that the brief was given to one Advocate at Delhi for preparing the R.S.A.No.4941 of 2009 (O&M) -7- .... appeal and although the drafting was complete, yet, the said counsel advised to file a review petition which, in fact, was not filed and as such, the delay had occurred, does not inspire confidence and cannot be accepted. Consequently, the appeal is dismissed on merits, as also being barred by limitation. All other pending miscellaneous applications are also dismissed in view of the above. January 06,2010 ( Mahesh Grover ) “SCM” Judge