RSA No. 4680 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. NO. 4680 OF 2010 (O & M) Date of Decision: 13.12.2010. Ramesh Kumar .......Appellant Vs. Amar Singh and others ....Respondents CORAM: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Kulbhushan Sharma, Advocate for the appellant. ..... RAJESH BINDAL, J. 1. The present regular second appeal has arisen out of the judgment and decree passed by the Learned Additional Distrcit Judge, Rewari, whereby the appeal preferred by the appellant/defendant, was dismissed. 2. The facts in brief are that the plaintiffs/respondents filed a civil suit for permanent injunction against the appellant/defendant with the averments that the ancestors of the plaintiffs and defendant had left a Shamlat Chowk shown in the site plan with the letters ABCDEF situated in the Abadi of village Chilhar, Tehsil and District Rewari. The said Shamlat chowk was being used by the parties and other inhabitants of the village from the time of their ancestors for common purposes i.e. for marriages, common cause, Biradri Panchayat and other festivals etc. It is further averred that besides other persons the RSA No. 4680 of 2010 -2- plaintiffs No. 1 to 4 had also their way (Rasta) from this chowk. The said chowk was being used by the parties for placing harrows, cultivators and bullock carts etc. The defendant being strong headed person intended to encroach upon the part of Shamlat Chowk, marked with letters AFGH, as shown in the red colour in the site plan, to the extent of 18 x 18 feet. When the plaintiffs asked the defendant to desist from his illegal plan, he refused to accede to the demands of the plaintiffs. With these averments, decree for mandatory injunction was also sought, in case the defendant succeded in making encroachment by way of construction over any part of Shamlat Chowk in any manner. 3. In its written statement, filed by the defendant besides taking preliminary objections, on merits, it was submitted that the site plan relied upon by the plaintiffs is wrong and against the factual position on the spot. The property in dispute is part and parcel of the property of the defendant and the same was never used for common purposes as alleged by the plaintiffs. The said property has been in use of the defendant, where kachcha wall and chappar already existed. Denying all other allegations, prayer was for dismissal of the suit. 4. After appreciating the evidence led by the respective parties, the Learned Trial Court decreed the suit of the plaintiffs and the appeal preferred by the defendant was dismissed by Learned Additional District Judge, Rewari. Having lost in both the courts below, the defendant is in appeal before this Court. RSA No. 4680 of 2010 -3- 5. The learned counsel for the appellant/defendant has argued that in the absence of any documentary and cogent evidence, the learned Lower Court has erred in concluding that the suit property is Shamlat Chowk. It further erred in believing the oral version of the witnesses of the plaintiffs, which was self contradictory. The report of Local Commissioner, which had not been proved in accordance with law, was worngly relied upon. 6. I have heard learned counsel for the appellant/ defendant and perused the relevant record. From the testimony of Ramesh Kumar DW-5, the defendant himself, it was proved on record that the suit property has never remained part of his ancesteral house. He had admitted in his cross examination that the door of his house opens in the disputed property. Admittedly, the house of the defendant already existed as shown in the site plan Ex.PW-1/B and the same reflects separate chowk in his house and main door of his house opens in the disputed property, shown in the red colour in the site plan Ex.PW-1/B relied upon by the plaintiffs. Had the suit property been part of ancestral house of the defendant, then earlier construction of room, kitchen etc. must have been existing over it. Hence, from the cross examination of Ramesh Kumar DW-5 defendant, it stands established that the main door of his ancestral house opens in the suit property and now he has encroached upon the portion AFGH as shown in red colour in site plan Ex.PW-1/B, relied upon by the plaintiffs. Even by the evidence of the appellant/defendant, it stands established that the Local RSA No. 4680 of 2010 -4- Commissioner had visited the spot in his presence and submitted the report in accordance with the spot. Besides this, from the evidence of PW2-Dulli Chand, PW3-Prem Chand and PW4- Roshan Lal, it stands proved that the defendant had encroached upon the Chowk marked as AFGH, as shown in red colour, to the extent of 18 x 18 feet which was being used by the parties for common purposes since the time of their ancestors. The judgment of the learned court below is based on findings of facts recorded on correct appreciation of evidence on record which does not give rise to any question of law much less a substantial question of law. Accordingly, the appeal is dismissed. (RAJESH BINDAL) Judge 13.12.2010 gp