IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2879 of 1985 Date of Decision: 23.3.2010 Smt. Uma Rani. ....... Appellant through Shri Deepak Sibal, Advocate. Versus Shri Sat Pal Singh Thapar (since deceased) through L.Rs. and others. ....... L.Rs. of respondent no.1 through Ms.Alka Sarin, Advocate. Respondent nos. 2 to 4 through Shri A.K.Chopra, Senior Advocate with Shri Rajneesh Chauhan, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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. The plaintiff is in second appeal. She had filed a suit for possession by pleading that she had purchased two plots bearing nos.21 and 23-A, total measuring 220 square yards comprised in khewat nos. 50, 35 min, khatauni no.52, khasra nos. 1637/413 and 416/1 as entered in the jambandi for the year 1968-69 and shown with letters A B C D in the layout plan of Sandeep Nagar Harpal Nagar) situated in Taraf Gehlewal, Ferozepur Road, Ludhiana (hereinafter described as `the disputed property') from late Shri Sat Pal Singh Thapar (referred to hereinafter as `defendant no.1') vide sale deed dated 28.4.1971, registered on 22.6.1971. Defendant no.1 was stated to be owner of a huge chunk of land and he had sold plots in similar R.S.A.No.2879 of 1985 -2- .... fashion to other persons. In the month of May,1973, the plaintiff had to file a civil suit for mandatory injunction when she noticed that a wall was being raised on the plots which were purchased by her. Defendant no.1 filed a written statement and stated that these plots did not belong to the plaintiff, although he had admitted the sale of two plots to her. The identity of the plots was disputed. That suit was dismissed on 20.8.1975 under Order 17 Rule 3 of the C.P.C. as the plaintiff failed to adduce any evidence Thereafter, the instant suit was filed in the year 1978 and it was pleaded therein that defendant nos. 2 to 5, all or some of them, have encroached upon the disputed property and, they be directed to hand over the possession thereof to her. In the alternative, she had prayed that a decree for recovery of an amount of Rs.19765/- be passed in her favour. Defendant no.1, who had sold the disputed property to the plaintiff, resisted the suit, as also did defendant nos. 2 to 5. In his written statement, defendant no.1 had pleaded that the suit was barred by res judicata and construction, if any, raised by defendant nos. 2 to 5, was raised in the year 1973 which was to the knowledge of the plaintiff, but no steps were taken to resist such construction and, therefore, the instant suit was completely misconceived. Defendant nos. 2 to 5, in their written statement, denied having encroached upon the disputed property and pleaded that they had purchased land from defendant no.1. On 7.12.1978, as many as ten issues were framed. Thereafter, the application moved by defendant nos. 2 to 5 for amendment of their R.S.A.No.2879 of 1985 -3- .... written statement was allowed vide order dated 16.7.1980 and as a consequence thereof, five additional issues were framed. During the pendency of the suit, vide order dated 23.8.1979, a Local Commissioner was appointed, who determined by his report that the disputed property was in possession of Krishan Kumar and Shakuntala Devi, who were arrayed as defendant nos. 3 & 4. Defendant no.1 had filed objections to that report, whereas defendant nos. 3 & 4 did not do so. The objections were rejected and the report of the Local Commissioner was upheld by the Senior Sub Judge, Ludhiana (hereinafter called as `the trial Court') vide order dated 16.2.1981. Thereafter, the trial Court,after appraisal of the entire evidence on record, dismissed the suit of the plaintiff vide judgment & decree dated 3.9.1981. Feeling aggrieved, she filed an appeal, which was also dismissed by the Additional District Judge, Ludhiana (described hereinafter as `the first appellate Court') vide his judgment & decree dated 11.5.1985. Hence, this Regular Second Appeal by the plaintiff. Learned counsel for the plaintiff has contended that in view of the report of the Local Commissioner which was never objected to by defendant nos. 2 to 5, the encroachment on the disputed property was established and, therefore, the Courts below ought to have directed the delivery of possession thereof to the rightful owner, i.e., the plaintiff. He further contended that the report of the Local Commissioner was conclusive nature of evidence and the same ought to have been accepted by the Courts R.S.A.No.2879 of 1985 -4- .... below and by not doing so, it has recorded perverse findings which deserve to be set aside. On the other hand, learned counsel for defendant nos. 2 to 5 contended that defendant nos. 2 to 5 had purchased separate plots and were owners in possession thereof and that the sale in favour of the plaintiff is of the year 1971 and the suit has been filed in the year 1978, i.e., much belatedly and beyond the period of limitation. The dismissal of the earlier suit was pleaded to be operating as res judicata regarding the instant proceedings as that suit had been dismissed for want of evidence. It was next contended that the conduct of the plaintiff herself disentitled her to any relief as she came to know about the construction in the year 1973 and yet, she did not raise any objection thereto and whatever dispute she raised in the year 1973, she did not lead any evidence in support thereof and, therefore, dismissal of the appeal was prayed for. Learned counsel for the legal representatives of defendant no.1 also advanced submissions on the similar lines. I have thoughtfully considered the rival contentions and have also gone through the whole record. The glaring fact which has to be seen is that the plaintiff filed first suit for injunction in the year 1973 alleging that defendant no.1 had raised a wall around the disputed property. Defendant nos. 2 to 5 were not party thereto. Defendant no.1 took up the plea that the disputed property as described in that suit did not belong to the plaintiff. It was the duty of the plaintiff to have led some evidence to establish her claim, but she did R.S.A.No.2879 of 1985 -5- .... nothing of the sort and in the absence of any evidence, that suit was dismissed. Thereafter also, she made no attempt to retrieve her possession. The suit for mandatory injunction filed at that point of time, by implication, assumed the colour of a suit for possession as it amounts to an oblique admission that the disputed property was not in the possession of the plaintiff and was encroached by a person against whom such mandatory injunction was sought. The instant suit was filed in the year 1978 and during this interregnum, defendant nos. 2 to 5, after obtaining necessary sanction from the municipal authorities, raised complete construction over the disputed property. It is common knowledge that the construction of a property does not come up over night. The plaintiff slept over her rights and permitted all this construction to come up without any demur. Even in his testimony while appearing as PW1, the husband of the plaintiff and her general power of attorney, namely, Shri Varinder Kumar, clearly stated that they had never seen the suit property and had never even visited the site. It is not understandable as to when the first suit was dismissed in the year 1975 for want of evidence, why did the plaintiff wait for three more years to enforce her right over the suit property. Exhibits P5 and P6 are the copies of the judgment & decree showing the dismissal of the suit. This would clearly operate as a bar of res judicata against the instant proceedings. Strangely, in paragraph 2 of the earlier plaint, the plaintiff had pleaded that she was in possession of the suit property, but in his statement in the instant suit, PW1, the husband of the plaintiff, stated that they had never seen the plots and never visited the same. Besides, it is not the case of the plaintiff R.S.A.No.2879 of 1985 -6- .... that the same plots were sold to defendant nos. 2 to 5 and that defendant no.1 had resorted to a dummy sale in favour of the said defendants. There is no material on record to suggest that the plaintiff had ever alleged that the sale of plots in favour of defendant nos. 2 to 5 was fictitious or that the same property was sold twice over. No criminal complaint was preferred by her to suggest that she is the victim of fraud. Therefore, the suit of the plaintiff was liable to be dismissed on both counts- the bar of principle of res judicata and limitation. The law always comes to the aid of a vigilant and not to the ones, who choose to slumber. There is, however, one redeeming feature in the case of the plaintiff and that is the report of the Local Commissioner which was not objected to by defendant nos. 2 to 5. It clearly establishes that these defendants had encroached upon the disputed property. The report is by a revenue official, who resorted to proper demarcation. In this view of the matter, when defendant nos. 2 to 5 had not objected to the report of the Local Commissioner, I am of the opinion that this report should have been relied upon by the Courts below to return a finding regarding encroachment made by them. However, in the given set of circumstances, because of the laxity of the plaintiff herself, the plea of possession of the disputed property cannot be answered in her favour, even if the report of the Local Commissioner is accepted and it is only the alternative prayer of refund of money to her can be accepted. The plaintiff has pleaded that a sum of Rs.11,000/- was paid as sale consideration, out of which a sum of Rs.2500/- R.S.A.No.2879 of 1985 -7- .... was paid on 12.3.1971 and payment of another sum of Rs.8500/- was made on 22.6.1971. She has also claimed interest on this amount at the rate of 12% per annum,which has been calculated from the aforesaid date and a total amount of Rs.8765/- has been asked for on that account. The question of law, therefore, which arises for consideration in the instant appeal, is as to “whether the report of the Local Commissioner which was not objected to by defendant nos. 2 to 5 could have been accepted as a persuasive piece of evidence to establish the factum of encroachment or not”? On the basis of the above discussion, the aforementioned question is answered and it is held that the report of the Local Commissioner should have been accepted as persuasive piece of evidence and it is further held that defendant nos. 2 to 5 had encroached upon the disputed property and they were liable to compensate the plaintiff for the same. Accordingly, this appeal is partly allowed, the impugned judgments & decrees are partly set aside, to hold that defendant nos. 2 to 5 are encroachers and hence, they are directed to pay to the plaintiff a sum of Rs.11,000/- along with interest at the rate of 9% per annum from the date of filing of the suit till the date of payment. The plaintiff shall also be entitled to a sum of Rs.1,00,000/-- (Rs.one lac) as compensation from defendant nos. 2 to 5 because they had wilfully encroached upon the disputed property and deprived a rightful owner of its possession. March 23,2010 ( Mahesh Grover ) “SCM” Judge