R.S.A.No. 2061 of 2005 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2061 of 2005 (O&M) Date of decision: 21.10.2009 Dhian Singh ......Appellant Versus Atma Ram .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Ramesh Sharma, Advocate, for the appellant. Mrs.Satpreet Grewal, Advocate, for the respondent. **** SABINA, J. Plaintiff Atma Ram filed a suit for possession and permanent injunction, which was decreed by the Civil Judge (Jr.Divn.) Hoshiarpur, CC Dasuya vide judgment and decree dated 20.2.2003. In appeal, the said judgment and decree were upheld by the Additional District Judge, Hoshiarpur vide judgment and decree dated 10.3.2005. Hence, the present appeal by the R.S.A.No. 2061 of 2005 (O&M) 2 defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. In nut-shell, the case of the plaintiff Atma Ram was that he alongwith his brothers Hari Singh purchased land measuring 20 kanals 10 marlas out of khasra no. 593 by way of registered sale deed dated 22.8.1972 and from Mool Chand and Amar Singh out of khasra no. 593 (55-12); that consolidation of the land holdings was in progress and new jamabandi had not been, yet finalised; that the suit property was carved in lieu of shares in khasra no. 593; that house marked ABCD belong to the plaintiff; that defendant took forcible possession of the house in dispute on 24.12.1992 after assaulting the wife of the plaintiff, and defendant constructed new verandah illegally during the period from 28th to 30th January, 1995 alongwith bath room by making encroachment in the remaining portion of the site, which was part and parcel of khasra no. 646/5 (20-10) that the defendant was head strong person and he had entered in possession in connivance with the police and was not vacating the property in dispute despite repeated demands. Hence, the suit. 3. The suit was contested by the defendant by R.S.A.No. 2061 of 2005 (O&M) 3 taking up preliminary objections that the site plan filed by the plaintiff was not correct as per the record, that the suit for permanent injunction was not maintainable as the plaintiff was neither owner nor in possession of any portion of the suit property; that plaintiff was estopped by his act and conduct from filing the present suit; that the suit of the plaintiff had not been properly valued for the purposes of court fee and jurisdiction and that the suit of the plaintiff was barred under Order 2 Rule 2 CPC and under Order 23 Rule 1(4) of the CPC. On merits, it was admitted that plaintiff was co-owner of khasra no. 593 but stated that mother of the parties was also co-owner in the said khasra number. It was also admitted that consolidation of the land holdings was in progress in village Talwara; that the site plan of the plaintiff, however, was stated to be wrong. It was averred that house was constructed by the defendant with the help of the money which he received as compensation on account of retrenchment after taking the site under the house from his mother and the plaintiff. It was averred that house was constructed by the defendant with the consent of the plaintiff and his mother and in their presence and therefore the plaintiff was estopped from filing the present suit It was denied that defendant took forcible possession R.S.A.No. 2061 of 2005 (O&M) 4 of the house on 24.12.1992. The defendant claimed to be co-sharers in khasra no. 577 in which major part of the house was falling. It was denied that the suit property formed part of khasra no. 646/5. The further plea was that answering defendant was owner in possession of the house since 1984, when it was constructed. The defendant accordingly prayed for dismissal of the suit by denying the rest of the averments of the plaint. On the pleadings of the parties, following issues were framed by the trial Court:- i) Whether plaintiff is entitled for possession of the suit land, as detailed in the head note of plaint?OPP ii) Whether plaintiff is entitled to injunction as prayed for?OPP iii) Whether plaintiff alongwith his brother purchased the 20 kanals 10 marlas vide registered sale deed dated 22.8.1972 and 13.6.1974?OPP iv) Whether defendant has encroached upon the suit land?OPP v) Whether site plan filed by the plaintiff is wrong?OPD vi) Whether suit of plaintiff is not maintainable?OPD R.S.A.No. 2061 of 2005 (O&M) 5 vii) Whether plaintiffs estopped from filing the present suit by his own act and conduct?OPD viii) Whether suit of the plaintiff is barred under Order 2 Rule 2 of CPC and under Order 23 Rule 1 (4) of CPC? OPD ix) Relief.” Learned counsel for the appellant has submitted that the Courts below had erred in decreeing the suit of the plaintiff placing reliance on the report of the Local Commissioner. The objections filed by the defendant regarding the report of the Local Commissioner had not been decided. The plaintiff himself had made a statement that the Local Commissioner would be produced by him as a witness but he had failed to do so. Learned counsel for the respondent, on the other hand, has submitted that the Local Commissioner had visited the spot. Wife and son of the defendant were present at the spot when the Local Commissioner prepared the report. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. In the present case, the plaintiff had filed a suit for possession. Local Commissioner visited the spot and prepared his report to the effect that the defendant had encroached upon 1 kanal 1 marla of land of Khasra No. 593. Admittedly, Khasra No.593 is R.S.A.No. 2061 of 2005 (O&M) 6 owned by the plaintiff, whereas, the adjoining Khasra No.577 is owned by the defendant. Local Commissioner, before visiting the spot, issued notice to the parties. As per the report of the Local Commissioner, the wife and son of the defendant were present but they had refused to sign the attendance sheet. The defendant had filed objections to the report of the Local Commissioner on the ground that no notice had been issued to him by the Local Commissioner and the measurement had not been taken in accordance with law. However, the defendant failed to call the Local Commissioner for the purpose of cross-examination after his report was tendered in evidence as Ex.P-5. Although the plaintiff had assured that he would produce the Local Commissioner as a witness but this did not preclude the defendant from calling the Local Commissioner in the witness box for the purpose of cross- examination and as such the Courts below rightly held that the appellant-defendant had failed to rebut the report of the Local Commissioner. The onus was on the defendant-appellant to summon the Local Commissioner for the purpose of cross- examination. The plaintiff and his brother had purchased khasra No.593 vide registered sale deed Ex.P-1, whereas, the portion of the said khasra number had been encroached upon by the defendant. In these circumstances, the Courts below had rightly decreed the suit of the plaintiff as the defendant could not be allowed to remain in possession of the encroached portion of the land R.S.A.No. 2061 of 2005 (O&M) 7 belonging to the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 21, 2009 anita