R. S. A. No. 1404 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1404 of 2010 (O&M) Date of Decision : April 05, 2010 Malkit Singh and another .... Appellants Vs. Lal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. S. Joshi, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 4166-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 19 days in re-filing the appeal is condoned. C. M. No. 4167-C of 2010 : Allowed as prayed for. C. M. No. 4168-C of 2010 : Deficiency in court fee has already been made good. Allowed as prayed for. C. M. No. 4169-C of 2010 : R. S. A. No. 1404 of 2010 (O&M) 2 Application is allowed and Annexures P-1 and P-2 are taken on record, subject to all just exceptions. C. M. No. 4170-C of 2010 and Main Appeal : Defendants Malkit Singh and Inder Singh, having remained unsuccessful in both the courts below, have filed the instant second appeal. Respondents Lal Singh etc. filed suit for possession of 1 karam x 3 karams area out of khasra no. 125//4/8 (0-3) and three marlas land of khasra no.125//4/9 (0-3) alleging that plaintiffs are owners of the said land, but the defendants forcibly encroached thereupon in May 2005 in spite of status quo order granted by the trial court in another suit for permanent injunction instituted by the plaintiffs against the defendants. The defendants inter alia pleaded that they are owners in possession of the adjoining land of khasra nos. 125//4/10 (0-3) and 125//4/11 (0-3) and they have not taken possession of the suit land of khasra no. 125//4/8 and khasra no.125//4/9 – owned and possessed by the plaintiffs. Learned Civil Judge (Junior Division), Sangrur, vide judgment and decree dated 14.05.2008, decreed the plaintiffs' suit. First appeal preferred by the defendants stands dismissed by learned Additional District Judge, Sangrur vide judgment and decree dated 31.07.2009. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Kanwarpreet Puri – Field Kanungo was appointed as Local Commissioner in the other suit between the parties and he demarcated the suit land and found the defendants to have encroached upon the suit portion belonging to the plaintiffs. Kanwarpreet Puri has been examined as PW-2 in the instant suit, who has proved his report. In view of the said report, both the courts below have concurrently held that the defendants have encroached upon the suit portion of the land belonging to the plaintiffs. R. S. A. No. 1404 of 2010 (O&M) 3 Learned counsel for the appellants vehemently contended that Kanwarpreet Puri did not find any lal pathar as pucca point and therefore, demarcation made by him is not legal and valid, being in violation of Financial Commissioner's instructions. It was also pointed out that the appellants have therefore moved C. M. No. 4170-C of 2010 in the instant second appeal for appointment of another Local Commissioner for demarcation. I have carefully considered the aforesaid contention, but find no force therein. It is not the case of even the appellants that lal pathars are in existence at the spot and the same were not taken into consideration by Kanwarpreet Puri while making demarcation. When lal pathars are not available at the spot, the appointment of another Local Commissioner for demarcation would be a futile exercise. Accordingly, C. M. No. 4170-C of 2010 is dismissed. On the other hand, Kanwarpreet Puri, while making demarcation, took into consideration pucca thadas available at the spot, with the consent of the parties. Consequently, demarcation made by Kanwarpreet Puri cannot be said to be invalid or illegal in any manner. The mere fact that Kanwarpreet Puri did not record statement of the parties regarding their consent to pucca thadas would not invalidate his demarcation report. As noticed herein above, when lal pathars are not available, pucca thadas were rightly taken into consideration by the Local Commissioner for making demarcation. His demarcation report cannot be said to be invalid in any manner. On the other hand, learned counsel for the appellants conceded that objections preferred by the present appellants against the aforesaid demarcation report in the concerned suit stand dismissed. Both the courts below have concurrently found, on appreciation of evidence, that defendants have encroached upon the suit land, which admittedly belongs to the plaintiffs. The said encroachment is duly proved R. S. A. No. 1404 of 2010 (O&M) 4 by demarcation report and other evidence. The aforesaid concurrent finding of the courts below cannot be said to be illegal or perverse in any manner. The same is based on proper appreciation of evidence. No question of law, much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. April 05, 2010 ( L. N. MITTAL ) monika JUDGE