R.S.A.No. 349 of 2010 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 349 of 2010 Date of decision: 22.11.2010. Haryana Vidhut Prasaran Nigam and another Appellants Versus Surender Pal and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG. Present: Mr. Narender Sura, Advocate for the appellant. Mr. K.K.Goel, Advocate for the respondent. ***** RAKESH KUMAR GARG, J. This is defendants' second appeal challenging the judgments and decrees of the Courts below whereby suit of the plaintiff for possession has been decreed. As per averment made in the suit, plaintiff is the owner of 2 marlas land gair mumkin gada Khad comprised in Khasra No.1295 situated in Ratia, Tehsil Ratia, District Fatehabad. It is the case of the plaintiff-respondent that defendants who have no right, title or interest in the aforesaid land have encroached upon area measuring 1 marla i.e. 2X4=8 Karam and had constructed Rasta over the said land. The suit was resisted by the appellants raising various preliminary objections. On merits, it was submitted that defendants/appellants had not encroached upon any land of the R.S.A.No. 349 of 2010 -2- *** plaintiff/proforma respondents. The passage in question was in existence since the year 1974 and the same is in possession of the defendants. However, if this Court comes to the conclusion that the said passage is over the land measuring 0 kanal 2 marlas gair mumkin gada khad comprised in Khasra No.1295 belonging to the plaintiff-respondent, then the appellants were entitled to the same on the basis of easement rights as it was being used by the appellants since 1974 peacefully, within the knowledge of the plaintiff and previous owner and without any interruption. The demarcation report submitted by the plaintiff was false and was prepared in the absence of the appellant and the same was not binding on their rights. It was further pleaded that in case the plaintiff and proforma defendants are proved to be owners of the land/passage in question, then they are not entitled to possession of the same as the defendants have perfected the title on the basis of prescription and easement rights and as such, the suit was liable to be dismissed. On the basis of aforesaid pleadings, the following issues were framed:- “1. Whether the plaintiff is entitled to a decree for possession over the land as mentioned in the head note of the plaint? OPP 2. Whether the suit of plaintiff is wrong, against law and facts and is liable to be dismissed? OPD 3. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD R.S.A.No. 349 of 2010 -3- *** 4. Whether the suit of plaintiff is not maintainable in present form? OPD 5. Whether the suit is bad for mis-joinder and non- joinder of necessary party? OPD 6. Relief.” After hearing learned counsel for the parties and perusing the evidence on record, issue no.1 was decided in favour of the plaintiff by the Trial Court and other issues were decided against the defendants being not pressed and resultantly the suit of the plaintiff for possession was decreed. Relevant observation of the Trial Court reads as follows:- “As per the jamabandi Ex. P1 for the year 1998-99, the land measuring 0 kanal 2 marla is owned and possessed by Surrender Pal and Shishpal sons of Jagan Nath. As per demarcation report Ex.P2, defendant-HVPN has encroached upon the land of the plaintiff to the extent of 1 marla i.e. 4X2=9 karam and is being used by DHBVNL, as passage. In this way, the plaintiff has established his ownership over the land measuring 0 kanal 2 marlas gair mumkin gada khad comprised in khasra No.1295 as well as encroachment of defendant-HVPN to the extent of 0 kanal 1 marla i.e. 4X2=8 karam, which is being used by defendant-HVPN as passage. Now, the main contention of the defendant-HVPN is that defendant-HVPN has acquired the right to use the passage by way of R.S.A.No. 349 of 2010 -4- *** prescription DW1 Ajay Kumar, SSE, HVPN, Fatehabad, in his affidavit has stated that other than the passage in question, there is no other passage for the defendant- HVPN to go to the office and other residential complex of the Nigam. In his cross-examination, he has stated that on both sides of the passage in question, there exists the land of 33 KV Sub-Station on the Budhlada Road. He has further admitted that there is some other vacant land situated on the spot other than the gate in question. In this way, defendant DW1 admits the existence of the vacant land of the defendant-Nigam on both sides of passage and in that eventuality, the plea of the defendant-Nigam that there is no other passage for have being access to the residential as well as official complex of the Nigam, stands falsified and as a consequence of it, the plea of defendant-HVPN to use the path passing through the land of plaintiff by way of easement also, stands falsified. In other words, it can be said that when defendants-HVPN is having its land for using the same as a passage on both sides of the passage in question, why the said land is not being used by the defendants-HVPN for having access to the residential as well as official complex of the Nigam and in that eventuality, the plea of easement is not available to the defendants-HVPN.” Aggrieved from the judgment and decree of the Trial R.S.A.No. 349 of 2010 -5- *** Court, appellants filed appeal before the Lower Appellate Court, which was also dismissed. While dismissing the appeal, Lower Appellate Court observed as under:- “Admittedly, the plaintiff is the owner in possession of the suit land as is clear from a perusal of the copy of jamabandi Ex. P1 for the year 1998-99. Admittedly, some portion of the suit land is being used by the defendants as a passage. The plaintiff has got the suit land demarcated vide demarcation report Ex. P/2 which shows that the defendant HVPNL has encroached upon the suit land up to the extent of one Marla i.e. 4X2=8 Karams and the same is being used by the DHPVNL as passage. Admittedly, the plaintiff is the owner of the land measuring 0 kanal 2 Marlas Gair Mumkin Gada Khad comprised in Khasra No.1295 and, therefore, the plaintiff is entitled to get the possession of the encroached portion of the land upto the extent of 0 kanal 1 Marla i.e. 4X2=8 Karams which is being used by the defendants as a passage. The stand taken up by the defendants-appellants as argued by its counsel Sh. Rajbir Singh Advocate is that the appellants-defendant have acquired the easementary right to use the passage by way of prescription. Ajay Kumar DW1 in his affidavit DW/A has stated that there is no other passage except the disputed passage for the defendants to got to the office and other residential R.S.A.No. 349 of 2010 -6- *** complex of the Nigam. This plea cannot be accepted in view of the fact that DW1 Ajay Kumar, SSE in his cross- examination has clearly stated that on both sides of the passage in question there exist the land of 333 KV Sub Station on the Budhlada road. He has further admitted that there also exists some other vacant land at the spot other than the gate in question and thus DW1 Ajay Kumar SSE has admitted the existence of the vacant land of defendant Nigam on both sides of the passage. The defendant is having its own land which can be used as a passage. The defendant is having its own land which can be used as a passage and thus, the defendant has not acquired the easementary right qua the use of the passage which has been carved out in the suit land owner and possessed by the plaintiff who is, therefore, entitled to get the possession of the encroached portion of the land as per demarcation report Ex. P2 over which the defendant cannot agitate. 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 19.11.2008 passed by the learned Trial Court is, hereby, affirmed. R.S.A.No. 349 of 2010 -7- *** Still not satisfied, the appellants have filed the instant appeal challenging the judgments and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal:- “a) Whether the impugned judgments and decrees of both the Courts below are perverse, illegal, not based on correct appreciation of law and evidences on record, based on surmises and conjectures? b) Whether the ld. Trial Court has erred in law in not framing proper and necessary issues on the basis of pleadings particularly with regard to the objection of the appellants-defendant that the demarcation has not been done in the presence of appellants- defendants? c) Whether the Courts below have erred in law in jumping to the conclusion that the defendant- appellant have encroached upon the land in khasra No.1295 when the demarcation report, though exhibited as Ex. P2, has not been proved on record by either producing its original copy or by examination of the executant Sh. Dharampal Kanungo? d) Whether it is mandatory to examine the person who demarcated the area to prove the contents of demarcation report prepared by him, in view of law R.S.A.No. 349 of 2010 -8- *** laid down in 1981 PLJ 164? e) Whether a document can be said to be proved and be held admissible when its original has not been placed on file nor any permission to lead secondary evidence has been allowed by the ld. Trial Court.?” In support of his appeal, learned counsel appearing on behalf of the appellants has argued that the judgments and decrees of the Courts below are erroneous as the demarcation report relied upon by the respondents was prepared in the absence of the appellant and has not been proved in accordance with law. However, on the other learned counsel appearing on behalf of the respondents has supported the impugned judgments and decrees by arguing that concurrent finding of act has has been recorded by the Courts below on appreciation of evidence and no substantial question of law arises and the appeal deserves to be dismissed. I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below. Argument raised by the learned counsel for the appellants is noticed only to be rejected. Admittedly plaintiff is the owner of the suit land. There is no dispute regarding the identity of the property in question. Before the Courts below no argument was raised challenging the demarcation report. In response to the specific pleadings of the plaintiff-respondent, it has been specifically pleaded by the appellants that Rasta in question is in existence since 1974 and the same is being used by the appellants since then and they R.S.A.No. 349 of 2010 -9- *** have also acquired easementary right over the same, thus, argument raised is of no help to the appellants as it is not their case that Rasta in question belongs to them or the same does not belong to the respondents. No other argument has been raised. Thus, no substantial question of law arises. Accordingly, the appeal is dismissed. November 22, 2010 (RAKESH KUMAR GARG) Pka Judge