RSA No.2165 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2165 of 2010 Date of Decision: 19.10.2011 Mohinder Pal Singh Samundri ...Appellant Vs. State of Punjab & Ors. ...Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Vipin Mahajan, Advocate, for the appellant. Mr.Baljinder Singh Sra, Addl.A.G., Punjab. Mr.Sumit Gupta, Advocate, for respondent No 3. --- A.N.Jindal, J. Assailed in this regular second appeal is the judgment dated 2.2.2010 passed by the Additional District Judge, Hoshiarpur dismissing the appeal of the plaintiff/appellant (herein referred as the plaintiff) against the judgment passed by the trial court on 31.10.2008. The suit of the plaintiff is that he is owner of Khasra No.955/789 and 790/117 and respondents/defendants (herein referred as the defendants) have encroached upon an area RSA No.2165 of 2010 2 measuring 1 kanal 8 marlas as fully shown in the site plan attached with the plaint and defendants are bound to vacate the said area. The plea raised by defendants No.1 and 2 in their written statement is that they have no connection with the suit land. However, they have constructed the Rest House in Khasra No.788/116. Similar suit was filed by Sant Singh, father of the plaintiff, which was dismissed by Shri B.S.Mehendiratta, Sub Judge First Class, Dasuya on 11.12.1986 and the appeal filed against the said judgment was also dismissed on 6.9.1988. Defendant No.3 in its separate written statement took preliminary objections that the suit was not maintainable; no cause of action has accrued against the defendants and the suit is bad for want of service of notice under section 80 CPC. On merits, it was submitted that the State of Punjab has constructed buildings/sheds etc. way back w.e.f. 1960 to 1962. Thereafter, no construction has been raised by defendant No.3. Thus, prayer for dismissal of the suit has been made. Replication was also filed in which plaintiff reiterated his pleas, as raised in the plaint. From the pleadings of the parties as aforesaid, trial court framed the following issues:- 1. Whether the plaintiff is entitled for possession as prayed for, after removal of super structure? OPP 2. Whether no notice under Section 80 CPC to defendant was served? OPD RSA No.2165 of 2010 3 3. Whether the suit of the plaintiff is barred by time? OPP 4. Whether the suit of the plaintiff is barred by principle of res judicata? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD 6. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction? OPD 7. Relief. Both the parties led evidence. Trial court decided issues No.1, 4 and 5 against the plaintiff, whereas issues Nos.2, 3 and 6 were decided against the defendants. The appellate court answered issues 1, 2, 3, 5 and 6 in the same manner, but for issue No.4 regarding res judicata, the findings returned by the learned trial court were reversed and the same was decided in favour of the plaintiff. The appeal was dismissed. Admittedly, the principle of res judicata does not apply in this case for want of proper evidence. The substantial question of law as posed by the learned counsel for the appellant is: “ Whether the report of the Local Commissioner is valid and if so, if any encroachment has been made by RSA No.2165 of 2010 4 the defendant over the suit land?.” There is no denial to the fact that the plaintiff is the owner of the land and measuring 1 kanal 8 marlas comprising in Khasra No.955/789 and 790/117. It is also not disputed that the plaintiff has no connection with Khasra No.788/117 over which defendant No.3 has constructed a Rest House. Report of the Local Commissioner cannot be challenged as demarcation was made at the spot in the presence of the parties and the plaintiff while accepting the report signed the same. Both the courts below have accepted the report of the Local Commissioner. However, it would be pertinent to mention here that after the report of Local Commissioner was submitted in the court on 4.2.2006, parties were invited to file objections but no such objections were raised by either of the parties. However, it would be essential to point out that the Local Commissioner in his report Ex.PW 3/A has reported that defendants have not encroached upon khasra No.790/117 belonging to the plaintiff but two Septic Tanks each measuring 4'.3” X 4'.8” have been constructed by defendant No.3 in Khasra No.955/789. Thus, in the presence of these Septic Tanks over the land owned by the plaintiff it would be difficult to hold that defendant No.3 has not encroached upon any portion of the land of the aforesaid khasra number. Consequently, while assenting with the findings recorded by the learned trial court that the report of the Local Commissioner is correct, it would be held that the defendants have made RSA No.2165 of 2010 5 encroachment over the land measuring 4' 3” X 4” X 2 by way of constructing Septic Tanks over the same. As such question of law raised by the learned counsel for the appellant is answered in this manner. Resultantly, this appeal is partly accepted. Impugned judgment and decree is set aside and the plaintiff would be entitled to possession of the area measuring 4' 3” X 4' 8” X 2 out of Khasra No.955/789 as per the report of Local Commissioner Ex.PW 3/A. Decree sheet be prepared accordingly. (A.N.Jindal) 19.10.2011 Judge rp