RSA No.4049 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4049 of 2010 (O&M) Date of decision: 27.10.2010 Het Ram and another ......Appellant(s) Versus Sahab Ram and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Pankaj Maini, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.12055-C of 2010 Learned counsel for the applicant-appellants was unable to substantiate the aforesaid application and therefore, the same is dismissed. CM No.12056-C of 2010 This is an application under Order 41 Rule 27 CPC for permission to adduce additional evidence (documents Annexures A-1 to A- 5) in this appeal. Learned counsel for the applicant-appellant was unable to show any relevancy of the document Annexures A-1 to A-5 with merits of this appeal. Hence, the present application is dismissed. RSA No.4049 of 2010 (O&M) Defendant No.2-Het Ram has filed this appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff- respondent for possession was decreed. As per the averments made in the civil suit, respondent No.1 RSA No.4049 of 2010 (O&M) 2 along with respondent No.2 to 8 (i.e. defendants No.3 to 9) were tenants at will in the suit property. Defendant No.1-Mohar Singh had encroached upon 8 feet wide area on northern side of Khasra No.196//13 whereas the appellant i.e. defendant No.2 encroached upon 8 x 8 feet wide area on the northern side of Khasra No.196//14,15. Defendants No.1 and 2 had no right/interest in the suit property. The plaintiff-respondent got the land demarcated on 18.6.2006 and found that defendants No.1 and 2 had encroached upon the suit land as stated above. Thus, necessity arose to file the instant suit. In the written statement, defendant No.1-Mohar Singh pleaded that he and defendant No.2 had not demolished any portion nor encroached over the area as alleged. The demarcation dated 18.6.2006 was not done in their presence and the plaintiff-respondent was not competent to get the land demarcated and therefore, the suit was liable to be dismissed. The appellant (defendant No.2) also filed written statement taking similar pleas as taken by defendant No.1. However, defendants No.3 to 9 filed written statement admitting the claim of the plaintiff- respondent. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: “i. Whether defendant No.1 has encroached upon the northern portion of Khasra No.196//13 as alleged, if so to what effect? OPP ii. Whether defendant No.2 has encroached upon the northern portion of Khasra No.196//14,15 as alleged?OPP iii. Whether suit filed by the plaintiff is not RSA No.4049 of 2010 (O&M) 3 maintainable in the present form? OPD iv. Whether the civil court has no jurisdiction to entertain the present suit? OPD v. Whether the suit filed by the plaintiff is bad for non-joinder of necessary parties? OPD vi. Whether the suit filed by the plaintiff is time barred?OPD vii Whether suit filed by the plaintiff is bad for mis joinder of necessary parties? OPD viii Relief.” Both the parties led evidence. After hearing learned counsel for the parties and considering the evidence on record of the file, the trial Court found that Shankar Lal, father of the plaintiff and proforma defendants, was cultivating the suit land as Gair marusi and after his death, the plaintiff and proforma defendants inherited the tenancy from him. The trial Court also found that defendants No.1 and 2 had not disputed the possession of the plaintiff and proforma defendants over the suit land as they had assailed the locus standi of the plaintiff on the averments that they were not owners of the suit property and therefore, were not entitled to seek possession of the suit property allegedly encroached by defendants No.1 and 2. The trial Court also found that the demarcation dated 18.6.2006 was done by the Halqa Patwari on the basis of application filed by the plaintiff-respondent before the Deputy Commissioner, and who found the encroachment done by the defendants No.1 and 2 and that the demarcation was got conducted in the presence of many people and thus, the report of Local Commissioner do not suffer from any illegality. Consequently, the suit was decreed. Feeling aggrieved from the aforesaid judgment and decree of RSA No.4049 of 2010 (O&M) 4 the trial Court, defendant No.2 only filed an appeal before the Lower Appellate Court, which was also dismissed. While dismissing the appeal the Lower Appellate Court observed as under: “From the pleadings as well as evidence led by the parties, it is clear that the possession of the plaintiff and proforma defendants is not disputed but appellant- defendant No.2 has challenged the locus standi of the plaintiff to file the suit on the ground that he is not the owner of the suit property. A perusal of Jamabandi Ex.P-4 shows that Shankar Lal, father of the plaintiff and proforma defendants are in cultivating possession as Gair marusi tenants. It is also not disputed that after the death of Shankar Lal, the plaintiff and proforma defendants have inherited the suit property though it is not mentioned in Khasra Girdawari Ex.P5 which shows only the name of Shankar Lal. Ex.P1 is the application moved by Sahab Ram plaintiff before the Deputy Commissioner for demarcation of the land. A copy of demarcation report dated 18.6.2006 Ex.P2 clearly goes to show that both the defendants have encroached upon Khasra No.196//13, 14 and 15 as alleged by the plaintiff. Defendant No.1 did not even appear in the witness box to rebut the oral and documentary evidence led by the plaintiff-respondent. A perusal of file shows that demarcation has been conducted in the presence of respectables of the village as is evident from the demarcation report Ex.P-2. Notice Ex.P3 was also RSA No.4049 of 2010 (O&M) 5 served through Rajinder Singh Chowkidar before demarcation was effected. The said demarcation repot Ex.P2 has not been challenged by the defendants. Taking this view of the matter, I am of the view that the learned trial Court has rightly appreciated the evidence on record in its true perspective while deciding the issues and, therefore, the findings recorded by the learned trial Court on all the issues are hereby affirmed and consequently, the judgment and decree dated 15.4.2009 passed by the learned trial Court is hereby affirmed.” Still not satisfied, the present appeal has been filed by defendant No.2 submitting that the following substantial questions of law arise in this appeal: “(i) Whether the judgments passed by the Ld. Lower Courts could sustain in the eyes of law where they have established the right of respondent No.1 to get the land demarcated even when he was not holding the land as tenant without framing the issues in this regard? (ii) Whether the Ld. Lower Courts could relied upon the report dated 18.6.2006 (Annexure A-1) which was not moved by the owners for the demarcation of the land and the issues have not been framed even the objections has been raised by appellant No.1 in its written statement dated 16.5.2007 (Annexure A-2)?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. At the outset, it may be relevant to notice that along with this RSA No.4049 of 2010 (O&M) 6 appeal, the appellant has also filed applications under Order 41 Rule 27 CPC and under Order 41 Rule 23 CPC but the same could not be substantiated and was rejected. From the pleadings as well as evidence led by the parties, possession of the plaintiff and proforma defendants is not disputed but the appellant has challenged the locus standi of the plaintiff, to file the suit, on the ground that he is not the owner of the suit property. However, it has not been argued as to how the plaintiff-respondent was not having the locus standi to file the suit. It may also be seen that the onus to prove issue No.3 was upon the appellant and he has failed to discharge the same. Not only this, there is no evidence on record to rebut the demarcation report vide which the appellant has been found to have encroached the suit property. Thus, no fault can be found with the concurrent findings recorded by the Courts below. No substantial question of law arises in this appeal. Dismissed. October 27, 2010 (RAKESH KUMAR GARG) ps JUDGE