R.S.A. No. 1040 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1040 of 2006 (O&M) Date of decision : 10.1.2011 Makhan Singh through his LRs and others ......Appellants Versus Chamkaur Singh and others .......Respondents ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Jasbir Rattan, Advocate, for the appellants. Mr. Anmol Rattan Singh Sidhu, Senior Advocate with Mr. R.K. Chugh, Advocate, for the respondents. **** SABINA, J. Chamkaur Singh and Gurjant Singh-respondents No.1 and 2 filed a suit for possession against the appellants and Mukand Singh defendant No.3-proforma respondent. The suit filed by the plaintiffs was decreed by the trial Court vide judgment and decree dated 26.4.2004 and the defendants were directed to handover vacant possession of the suit property to the plaintiffs within three months. Aggrieved by the same, defendants preferred an appeal. The said appeal was dismissed by learned Additional District Judge, Sangrur vide judgment and decree dated 27.10.2005. Hence, the present appeal by defendants No.1,2, 4 to 6. R.S.A. No. 1040 of 2006 (O&M) 2 During the pendency of this appeal, following order was passed by this Court on 22.7.2009 :- “The respondents filed a suit for grant of a permanent injunction to restrain the appellants from dispossessing them. During the pendency of the suit, the trial court appointed a local Commissioner to demarcate the disputed property. The local Commissioner submitted his report and the appellants filed objections thereto. However, proceedings in this suit were stayed, awaiting the out come of a suit filed by the appellants. In the meanwhile, the respondents filed the present suit praying for possession of the suit land. The claim for possession has been decreed by placing reliance upon the demarcation report, submitted in the suit, where proceedings are stayed, and objections to the report have not been decided. Faced with this situation, counsel for the respondents states that he has no objection, if the suit land is demarcated afresh. Counsel for the appellants prays for time to seek instructions. Adjourned to 10.8.2009.” The Local Commissioner submitted his report dated 30.11.2009 and the translated copy of the report, placed on record, reads as under :- “For demarcating the land falls in Khasra no.1612, situated at Village Mullowal, as per the orders passed by the Hon'ble Punjab and Haryana High court vide its order dated 10.08.2009. R.S.A. No. 1040 of 2006 (O&M) 3 I reached on the spot in village Mullowal on 30.11.2009. The Halqa Patwari of village Mullowal and Village Ranike were present with record on the spot and alongwith both the parties and the persons whose names entered in attendance memo were also present on the spot. Attendance memo enclosed with this report. In the presence of persons the measurement of area got done with steel inch-tape. Thereafter from the persons who were present there and from the parties, asked to disclose any fix point and they jointly and admittedly disclosed the Burji of Murababandi, which is laying standing on the corner of western- northern side of khasra no.1532, which has been pointed out in the site plan as Point 'A', the other point has been assumed to be admitted correct to the southern-western corner of khasra no.1533, where the Burji of Murababandi is lying standing and the same has been given as Point 'B' in the site plan. The third point assumed to be admitted correct to the eastern-northern corner of khasra no.1613 where the Burji of Murababandi is laying standing and the same has been given as point 'C' in the site plan. For the purpose of satisfaction of these points A,B,C, and for the satisfaction of the area the measurement of the land situated between these points (Burjis) have been got done. On measuring the distance between points A to B the same has been found complete total 100 Karam. The distance of point A to C got measured, which also found complete 300 karam. By R.S.A. No. 1040 of 2006 (O&M) 4 admitting these three points correct, the demarcation of Khasra no.1612 had got done, on measuring the land falls in the Khasra no.1612, situated at village Mullowal, the land measuring 1 Biga, 1 Biswa, 5 Biswasia found less on the spot, out of which the land measuring 2 Biswa, 5 Biswasia are in the possession of Ghumand Singh son of Jang Singh and Sukhdev Singh, Baldev Singh son of Ghumand singh and 1 Biswa, 5 Biswasia are in the possession of Sukhdev Singh, Baldev Singh sons of Ghumand Singh and 17 Biswa, 15 Biswasia land in the possession of Baldev Singh, Sukhdev Singh sons of Pritam Singh. But now the land falls in khasra no.655, situated at village Ranike under the ownership of Baldev Singh, Sukhdev Singh sons of Pritam Singh, had been purchased by Budh Singh son of Santa Singh 1/3 share and Darshan Singh, Sukhdev Singh sons of Budh Singh 2/3 share, residents of Ranike. In this regard the site plan in enclosed herewith. Report is submitted.” Learned counsel for the appellants has submitted that as per the latest demarcation report, appellant No.1 Makhan Singh, since deceased, represented through his legal representatives and appellant No.5 Chand Singh have not been shown to be in possession of the property owned by the plaintiffs. Hence, the decree so far as the appellants No.1 and 5 are concerned, was liable to be set aside. As per report of the local Commissioner only appellants No.2 to 4 have been held to be in possession of the encroached area. R.S.A. No. 1040 of 2006 (O&M) 5 Learned counsel for respondents No.1 and 2 has very fairly conceded to the submissions made by the learned counsel for the appellants and has submitted that the impugned decrees were liable to be upheld qua appellants No.2 to 4 as they have been found to be in possession of the encroached portion and qua appellant No.1 Makhan Singh through L.Rs and appellant No.5 Chand Singh, the impugned judgments and decrees were liable to be set aside as per the latest demarcation report dated 30.11.2009. Since the parties are not at variance, this appeal is partly allowed. The impugned judgments and decrees, passed by the courts below, so far as they relate to the appellants No.1 and 5 are set aside. However, the impugned judgments and decrees so far as they related to the appellants No.2 to 4 and the subsequent purchaser of appellants No.3 and 4 are upheld. (SABINA) JUDGE January 10, 2011 Anand