IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1320 of 2008 (O&M) Date of decision: 2nd December, 2008 Ram Kishan and others … Appellants Versus Puran … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Deepak Gupta, Advocate for the appellants. . Mr. J.S. Koonar, Advocate for respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) This is plaintiff’s’ second appeal. Plaintiffs have filed suit for possession of land measuring 1 marla, shown in red colour, marked by letters ‘A, B, C, D’ in the site plan, forming part of Khasra No.81 towards northern side. Plaintiff pleaded that he is permanent resident of village Raulan and owner in possession of Khasra No.81. It was stated that defendant has encroached upon 1 marla portion of the land towards northern side of Khasra No.81. Plaintiff further stated that he got Khasra No.81 demarcated from revenue officials and found that defendant has encroached upon 1 marla of land. His various requests to the defendant to remove the encroachment bore no fruit. Therefore, according to the plaintiff, this led him to institute the suit. On notice, defendant appeared, filed written statement, wherein he raised preliminary objections regarding wrong site plan, suit being barred by limitation, under valued and not approaching the Court with clean hands. On merits, it was submitted that house of the plaintiff is at a Regular Second Appeal No.1320 of 2008 (O&M) long distance from the house of the defendant and in-between shamlat deh land falls. It was further submitted that house of the defendant was in existence for last more than 25 years and no encroachment was made. Replication was filed in which averments made in the written statement were denied and that of the plaint were reiterated. The Court had formulated issues. Parties led their evidence. Defendant relied upon demarcation file of case No.216 decided by Naib Tehsildar on 8th April, 1997 on the basis of demarcation report dated 14th March, 1997. Various documents were also relied by the parties. Documents relied by the plaintiff have been exhibited as Ex.P-1 to P-5 and defendant’s documents have been exhibited as Ex.D-1, DW-2/A, DW-2/B and Mark ‘A’. Defendant got the site plan approved from Surinder Kumar DW-3. Trial Court noticed that earlier an appeal was preferred by the defendants. The matter was remanded back. It was ordered by the appellate Court that the trial Court will call a report from Local Commissioner and the suit land be demarcated afresh by the revenue officer not below the rank of Naib Tehsildar. It was further ordered by the appellate Court that such officer shall visit the property in dispute and furnish exact measurement of the encroached area and directed the Court to decide the issue afresh in view of the report. Trial Court noticed that in terms of the order, Tehsildar Ambala was appointed as Local Commissioner and under his instructions, Naib Tehsildar demarcated the suit property and submitted his report on 5th February, 2007. To that report of the Local Commissioner, various objections were also filed. The trial Court returned the following finding in para No.22: “22. Though, there is no dispute regarding the ownership of Khasra No.81 by the plaintiff Antu who is now represented by his legal heirs as he has died but on perusal of pleadings as well as jamabandi of khasra No.81, it is seen that 2 Regular Second Appeal No.1320 of 2008 (O&M) khasra No.81 measures 5-marla. Earlier suit of the plaintiff was decreed on the basis of demarcation report Ex.P1 prepared by revenue official but ld. Appellate Court remanded the case back as report of Local Commissioner was not accompanied by a map of the site in dispute. Thereafter, the land of the plaintiff was got demarcated through Naib Tehsildar Ambala Cantt. in terms of remand order passed by Ld. Appellate Court and the fresh report was received from Naib Tehsildar, Ambala Cantt. on file. As per this report, though the Local Commissioner found encroachment by the defendant on the land of the plaintiff but no demarcation of adjacent land of the defendant has been shown. Further, the area of the land demarcated by the Local Commissioner as reflected in report and in the map prepared by him also exceeds 5-marla land as 5-marla land cannot exceed 150 Sq. Yards but total area now shown by the Local Commissioner comprised in Khasra No.81 comes to 208 Sq. yards. As per the report of Local Commissioner, the area of the un- encroached portion of land comprising in khasra No.81 i.e. area lf land which is still in the possession of the plaintiffs comes out to 188 Sq. yards which amounts to 6.1 marla. Further as per demarcation report if area of the portion which is allegedly in possession of defendant by way of encroachment is calculated the same, comes to 0.8 Marla as per demarcation report. The total land of plaintiffs comprised in khasra No.81 comes out to 6.9 marla whereas according to the plaintiff himself and as per revenue record in the form of jamabandi relating to the land of the plaintiff comprised in khasra No.81, the same is of 5 marla. Thus the demarcation report of Naib Tehsildar Ambala Cantt. is not correct as per spot and further according to the said report the plaintiffs are already in possession of excess area i.e. they are in possession of land more than 5-marla even though they claim themselves to be owner of 5 marla land. So, the plaintiffs have failed to show that the defendant has encroached upon any portion of land comprising in khasra No.81 owned by the plaintiffs and so the plaintiffs are not entitled to seek possession of the land in dispute. Accordingly, this issue is deciding against the plaintiff or in favour of the defendant.” 3 Regular Second Appeal No.1320 of 2008 (O&M) Aggrieved against the same, plaintiff has filed an appeal. The appellate Court relied upon the testimony of Hans Raj one of the plaintiff’s, who appeared as PW-3. The Court also noticed that Hans Raj PW-3, in para No.1 of his affidavit, has stated that plaintiffs are owners in possession of 0.5 marlas bearing Khasra No.81 in village Raulan, Tehsil Ambala. The appellate Court below has held as under: “12. … … … … As per Aksha Shijra the boundaries are different, however, aksha shijra could not be read in isolation to other document. When area allotted was only five marlas and plaintiff was found to be in possession of more than six marlas of land, and the evidence on behalf of the plaintiff is lacking that Local Commissioner has fixed three pucca points before starting demarcation proceedings, therefore, no reliance can be placed on the demarcation proceedings. Consequently, plaintiff himself having been in possession of land more than allotted to him, it appears that litigation instituted was only mis-use of process of the Court.” In view of the concurrent finding of fact, present appeal deserves to be dismissed, as no substantial question of law arises. Mr.Deepak Gupta appearing for the appellants, at this stage, has persisted again and again and has stated that even though he is entitled to 5 marlas of land as per the allotment letter, but the same should be given to him in consonance with the site plan, attached with the allotment letter. Counsel further states that if any excess area is found with him, he is ready to return any land in excess of 5 marlas. Revenue authorities had recorded around the year 1950 that the appellant is entitled to only 5 marlas of land. The site plan attached is not made according to the scale. Therefore, appellant is entitled to only 5 marlas of land as per the concurrent findings returned by two courts below. Therefore, revenue 4 Regular Second Appeal No.1320 of 2008 (O&M) authorities will carry on the demarcation in the presence of parties and will find out the excess area, which is in possession with the appellant. For carrying out this exercise, appellants shall first file an undertaking before the trial Court that any excess area found shall be returned by them and they will forego their claim on the same. On the undertaking so furnished, demarcation shall be carried on. In case the undertaking is not furnished within one month from receipt of certified copy of order, present appeal shall be deemed to have been dismissed and the findings of the two courts below shall be deemed to have been affirmed. On the excess area surrendered by the appellant and subject to demarcation made, he will be at liberty to claim possession strictly in accordance with the demarcation. To this, counsel for the defendant has no objection. With these observations, present appeal is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE December 2, 2008 rps 5