Regular Second Appeal No.2595 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2595 of 2006 Date of decision: 08.07.2009 Smt. Juhri wife of Sh. Rozdar son of Jumme, resident of Ward No. 4 Nuh, Tehsil Nuh, District Gurgaon. ..... Appellant. Versus 1. Sarfraj Hussain, 2. Mohmmad Naseem sons of Sh. Khursheed Ahmed , both residents of village Tapkan, Tehsil Nuh, District Gurgaon, 3. Akhtar Hussain, and 4. Jakir Hussain sons of Risal Khan son of Surjan both residents of village Salamba, Tehsil Nuh, District Gurgaon. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Rajiv Sharma, Advocate for the appellant. None for the respondents. Sham Sunder, J. This Regular Second Appeal has been filed by the plaintiff (now appellant) for setting aside the judgment and decree dated 20.09.2004, rendered Regular Second Appeal No.2595 of 2006 2 by the Court of Additional Civil Judge ( Senior Division ), Nuh and the judgment and decree dated 31.05.2005, rendered by the Court of Additional District Judge, Gurgaon, vide which the appeal was dismissed. 2. Shorn off unnecessary details, the relevant facts necessary for the decision of appeal, are that the plaintiff claimed herself to be the owner of land comprising rectangle no. 15 khasra no. 25/1, measuring 1 kanal 18 marlas, situated in Ward No. 4 Nuh, Tehsil and District Gurgaon, after having purchased the same, vide sale deed dated 20.05.1986, executed by Shri Narain Dass and others in her favour. It was stated that, as per the report dated 23.11.2000 of Halqa Girdawar, in the execution proceedings, the construction raised by the defendants exists on the land comprising khasra No. 15/16/2. It was further stated that the construction, raised by the defendants, covers some portion of the land comprising khasra No. 15/25/1. In this manner, the defendants illegally encroached upon the land of the plaintiff, during the pendency of earlier Regular Second Appeal No.2595 of 2006 3 suit, filed by her, for permanent injunction in the Civil Court. It was further stated that even in the earlier suit, the defendants were restrained from interfering into the possession of the plaintiff. It was further stated that the defendants were asked many a time to deliver the possession of the encroached portion of the land comprising khasra no.15/25/1, but they refused to do so. On their final refusal, a suit for possession was filed. 3. Defendant nos. 3 and 4, put in appearance, and contested the suit, by way of filing written statement. It was pleaded that the suit was barred by the principles of res-judicata; that the plaintiff had not come to the Court with clean hands; that the plaintiff had no cause of action; and that the plaintiff had no locus standi to file the suit. It was denied that the plaintiff was the owner of the suit land. It was further stated that the plaintiff and the defendants are co-owners of the suit land. It was further stated that the defendants had not encroached upon any portion of the land bearing Khasra No. 15/25/1. It was, however, stated that the defendants are in Regular Second Appeal No.2595 of 2006 4 possession of Khasra No. 16/2. It was further stated that earlier a suit was filed by the plaintiff regarding the same property, which was dismissed with special costs. It was further stated that the construction raised by the defendants existed over the land comprising khasra no. 16/2, in which they are in possession as co-sharers. The remaining averments contained in the plaint were denied. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff is entitled for possession over the suit land being owner ?OPP 2- Whether the suit is barred by principle of res-judicata ?OPD 3- Whether the present suit is not maintainable ?OPD 4- Relief.” 5. The parties led evidence in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence, and Regular Second Appeal No.2595 of 2006 5 record of the case, the trial Court decided issue No.1 against the plaintiff. The remaining issues were not pressed. Ultimately, the trial Court dismissed the suit of the plaintiff. 7. Aggrieved against the judgment and decree dated 20.09.2004, rendered by the trial Court, the plaintiff (appellant) filed an appeal before the Appellate Court, at Gurgaon, which vide its judgment and decree dated 31.05.2005 dismissed the same. 8. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the plaintiff/appellant. 9. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully. 10. The Counsel for the plaintiff- appellant submitted that the appellant was the owner of the property, in dispute, over which encroachment had been made by the defendants, but the Courts below were wrong in dismissing the suit of the plaintiff, for possession. 11. The plaintiff (now appellant) claimed ownership of land measuring 1 kanal 18 Regular Second Appeal No.2595 of 2006 6 marlas comprising khasra No. 25/1. She claimed that construction, on some portion of this land, was raised by the defendants and, thus, they encroached upon the same. The plaintiff neither specified the portion nor got the same demarcated, on which, the defendants according to her, made encroachment, by raising construction. It was for the plaintiff to exactly specify the area, by getting the same demarcated, which formed part of khasra no.25/1, on which she claimed ownership and which portion, according to her, was encroached upon by the defendants. The plaintiff did not specify the same either in the plaint or during the course of evidence. However, it is evident from the judgment of the First Appellate Court that a Local Commissioner, who was appointed by the Court, found that the defendants were in possession of the land comprising khasra No. 16/2 and not in possession of any part of the land, comprising khasra no. 25/1. The factum of such demarcation was found recorded in the order dated 06.08.2001 passed by the Additional District Judge, Gurgaon, as is evident from the judgment of First Appellate Court. The concurrent findings of fact, recorded Regular Second Appeal No.2595 of 2006 7 by the Courts below that since the plaintiff failed to prove, as to on which portion of khasra no.25/1, the encroachment had been made by the defendants by raising construction, and, as such, she was not entitled to the decree for possession, being based on the correct appreciation of evidence, do not suffer from any illegality or perversity. The same do not warrant any interference. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) July 08, 2009 Judge dinesh