RSA No.4076 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4076 of 2007(O&M) Date of decision: 7.11.2008 Sukhram ......Appellant Versus PWD(B&R) and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ram Pal Verma, Advocate for Mr. Rajiv Sharma Advocate for the appellant. Rakesh Kumar Garg, J. CM No.10427-C of 2008 This is an application to bring on record the legal representatives of Sukh Ram-appellant who is stated to have died on 21.12.2007 leaving behind the applicants as mentioned in para No.2 of the application as legal representatives. It has been mentioned that the applicants as mentioned in para No.2 of the application are the only legal representatives of the deceased-Sukh Ram. Application is allowed subject to all just exceptions. Applicants as mentioned in para No.2 of the application are ordered to be brought on record as the legal representatives of the deceased appellant. Office to carry out necessary correction in the memo. of parties. RSA No.4076 of 2007 This is plaintiff's second appeal challenging the judgment and decree of Lower Appellate Court whereby appeal of the defendant- RSA No.4076 of 2007(O&M) 2 respondents was accepted, judgment and decree of the trial Court was set aside and his suit for permanent injunction restraining the defendants from demolishing his shop constructed on the suit property and detailed in the site plan, has been dismissed. As per the averments made in the plaint, the case of the plaintiff is that he is owner and in possession of land comprising Khewat No.139/113 Khatoni No.173 Khasra No.162 measuring 2 kanals 3 marlas situated within the revenue estate of village Deegh, Tehsil Ballabgarh, District Faridabad. It has been pleaded that the plaintiff has constructed 16 shops which are marked with letters ABCD in the site plan (Ex.P1) over the suit property mentioned in para No.1 of the plaint. It is further alleged that the defendants have constructed the metalled road situated towards the southern side of the shops in question in the year 1970-71 and the aforesaid metalled road has been constructed over the suit property mentioned in para No.1 of the plaint without paying any compensation and the plaintiff further alleged that the defendants are bent upon to demolish the shops as detailed in para No.2 of the plaint, without serving any notice to the plaintiff. The defendants contested the suit by filing written statement raising various preliminary objections. On merits, it was pleaded that the plaintiff and his son have encroached upon the land of PWD (B&R) defendant No.1 by constructing unauthorised shops over the road bearing khasra No.161 measuring 9'x81' and 8'x70'. When the defendants came to know about the illegal encorachment. they requested the Tehsildar, Ballabgarh to get the land in Phirni area of PWD demarcated, which was demarcated vide report dated 15.2.2002 and according to which it has been clearly established that the plaintiff has encroached upon the land of the Government and hence, the suit is liable to be dismissed. RSA No.4076 of 2007(O&M) 3 The trial Court while decreeing the suit of the plaintiff held that the defendants have failed to discharge their burden of establishing, firstly, that they are owners of Khasra No.161 and, secondly, that the plaintiff has encroached upon any land especially when it was admitted that adjacent to Khasra No.161, the plaintiff owns the suit property Khasra No.162 and has discharged his burden of pleading and proving that he is the owner of the suit property comprised in Khasra No.162 vide Ex.P2 which bears presumption of truth and the said presumption has not been rebutted by the evidence adduced by the defendants. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendants filed an appeal which was accepted vide impugned judgment and decree dated 20.10.2007 and the suit of the plaintiff-appellant was ordered to be dismissed with costs. While accepting the appeal, the Lower Appellate Court observed as under:- “Thus, in view of above discussion, as the plaintiff has come to the Court seeking permanent injunction against defendants from demolishing the shops in dispute situated in Khasra No.162 of the plaintiff and his son. The onus to prove however, lies heavily on the plaintiff to prove his right, title and interest in the suit property. Though he is found to be a Proprietor of the village to the extent of share of 30/40 in Khasra No.162 alongwith other Proprietors as per Jamabandi for the year 1996-97 (Ex.P2). However, he failed to prove that the shops in dispute have been constructed by them on the said Khasra number as he failed to get it demarcated. Similarly, sometime he claim the title of Khasra No.162 also though at the same time admitted that it is of the RSA No.4076 of 2007(O&M) 4 defendants and he has no objection, if encroachment is on Khasra No.161, is being removed by the defendants and the said encroachment is made by the plaintiff and his son besides his other co-villagers as per demarcation report Ex.D1 to Ex.D4. Hence, the plaintiff has not come to the Court with clean hands and has concealed the true facts from this Court seeking injunction of equity. Hence, he has no right or title to encroach on Khasra No.161 of the plaintiff which he has encroached by raising the shops in dispute shown by red colour in the demarcation report (Ex.D1 to D4) and the defendants have no right, title to demolish the same being part of the metalled road. However, learned trial Court has failed to appreciate the evidence and the law thereon and wrongly decided issues No.1 and 2 in favour of the plaintiff.” Still not satisfied, the plaintiff has filed the present appeal in this Court challenging the judgment and decree of the Lower Appellate Court. After hearing learned counsel for the appellant, I find no merit in this appeal. The controversy between the parties is whether the plaintiff has encroached upon any part of Khasra No.161 and whether defendants are rightly laying metalled road on Khasra No.161. From the respective stand taken by the parties, the plaintiff is claiming himself the owner in possession of land measuring 2 kanals 3 marlas in Khasra No.162 whereas the defendant-respondents are claiming ownership of Khasra No.161 which adjoins Khasra No.162. The plaintiff RSA No.4076 of 2007(O&M) 5 has come to this Court seeking permanent injunction restraining the defendant-respondents from demolishing his shops which have been constructed on the suit property. The suit has been resisted by the defendant-respondents on the ground that the shops in question have been built by the plaintiff-appellant by encroaching upon the land comprised in Khasra No.161. The learned Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the appellant has failed to prove that the alleged construction has been made by him in Khasra No.162. Learned counsel was unable to point out any illegality or infirmity in the finding of fact reached by the Lower Appellate Court. No merit. Dismissed. November 7, 2008 (RAKESH KUMAR GARG) ps JUDGE