RSA No.2824 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2824 of 2009 (O & M) Date of Decision: 04.05.2011 Jai Singh ……Appellant Versus Harpreet Singh and another …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. D. S. Gurna, Advocate for the appellant. Mr. Arun Bansal, Advocate for the respondents. L.N. MITTAL, J (ORAL) Defendant Jai Singh, having lost in both the Courts below, has filed the instant second appeal. Respondents/plaintiffs-Harpreet Singh and Gurpreet Singh filed suit against the defendant-appellant for permanent injunction alleging that they are owners in possession of khasra No.1613 in which they had constructed their residential house with open courtyard. The dispute is regarding portion depicted by letters ABC in site plan Ex.P-1. The plaintiffs alleged that the said portion is also part of khasra No.1613 owned and possessed by them. Defendant is owner in possession of the adjoining khasra No.1616, but the defendant wanted to encroach upon suit portion ABC of the RSA No.2824 of 2009 (O & M) - 2 - plaintiffs. Accordingly, plaintiffs sought permanent injunction restraining the defendant from interfering in plaintiffs’ possession over the suit property depicted by letters ABC in the site plan Ex.P-1 being part of khasra No.1613. The defendant admitted that plaintiffs are owners in possession of khasra No.1613 measuring 11 Biswas whereas defendant is owner in possession of adjoining khasra No.1616. The defendant, however, pleaded that suit property depicted by letters ABC in the site plan in part of khasra No.1616 and is not part of khasra No.1613. The defendant alleged that he is owner in possession of the suit portion. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Dera Bassi vide judgment and decree dated 25.04.2008 decreed the plaintiffs’ suit. First appeal preferred by the defendant stands dismissed by learned Additional District Judge, SAS Nagar, Mohali vide judgment and decree dated 07.04.2009. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Dispute in the lis is as to whether suit property is part of khasra No.1613 owned by the plaintiffs or it is part of khasra No.1616 owned by the defendant. To resolve this controversy, this Court vide order dated 23.10.2009 directed Tehsildar, Dera Bassi to make RSA No.2824 of 2009 (O & M) - 3 - demarcation of the suit land. However, Tehsildar vide his affidavit dated 19/20.04.2010 affirmed that he visited the site on 03.03.2010, 06.04.2010 and 15.04.2010 along with revenue officer in the presence of parties to conduct demarcation in compliance with order of this Court, but inspite of said three visits, he could not find any pucca points (on the basis of which demarcation could be conducted). It was accordingly affirmed that in the absence of pucca points, the demarcation could not be carried out. Pursuant to aforesaid affidavit of the Tehsildar, defendant-appellant moved CM No.8722-C of 2010 alleging that it is the duty of the revenue officers to maintain survey marks. Thereafter appellant also placed on record affidavits of Nazir Mohd, Watchman and one Gurmit Khan with CM No.9242-C of 2010 affirming that there is one permanent survey mark erected in the year 2005 which is still in existence at the spot. According to standing instructions of Financial Commissioner as well as according to High Court Rules and Orders, at least three pucca points in different directions should be in existence to conduct demarcation properly. In the instant case, the appellant in CM No.8722-C of 2010 or in CM No.9242-C of 2010 did not allege that three pucca points in three different directions are available at the spot so as to conduct the demarcation. In CM No.8722-C of 2010, there is no reference to actual existence of any RSA No.2824 of 2009 (O & M) - 4 - pucca points on the spot whereas in affidavits annexed with CM No.9242-C of 2010, there is assertion regarding existence of only one permanent survey mark existing at the spot. On the contrary, there is categorical assertion of the Tehsildar that he could not find three pucca points which are necessary for conducting the demarcation. Even according to appellant’s version in the aforesaid applications, three pucca points are not in existence at the spot. Consequently, demarcation can not be carried out as existence of three pucca points in three different directions is essential to conduct the demarcation properly as per requirement of High Court Rules and Orders and standing instructions of the Financial Commissioner. Accordingly, CM No.8722-C of 2010 praying that appropriate demarcation be got conducted cannot be accepted and is, therefore, dismissed. Plaintiffs have produced on record their own site plan Ex.P-1 and certified copy of ‘Akshashjra’ Ex.P-2 and defendant has produced his site plan Ex.D-1. As noticed hereinbefore, it is undisputed that plaintiffs are owners in possession of khasra No.1613 and defendant is owner in possession of khasra No.1616. The question to be determined is whether suit portion as depicted by letters ABC in the site plan Ex.P-1 as well as Ex.D-1 is part of khasra No.1613 of the plaintiffs or is part of khasra No.1616 of the defendant. A bare perusal of both the aforesaid site plans coupled with copy of ‘Akshashjra’ Ex.P-2 makes it amply clear that suit RSA No.2824 of 2009 (O & M) - 5 - property depicted by letters ABC is part of khasra No.1613. Very shape of land of plaintiffs comprised of khasra No.1613 as depicted in ‘Akshashjra’ Ex.P-2 makes it clear that the suit property depicted by letters ABC in both the site plans Ex.P-1 and Ex.D-1 is part of khasra No.1613 of the plaintiffs. Learned counsel for the appellant very emphatically contended that the Courts below have erroneously observed that no part of khasra No.1616 of the defendant touches the road on the south-western side whereas according to ‘Akshashjra’ Ex.P-2, some part of khasra No.1616 touches the said road. There is force in this contention. Even the plaintiffs have depicted in site plan Ex. P-1 that the said portion of khasra No.1616 of the defendant touches the road between points ‘C’ and ‘D’ as also depicted by defendant in site plan Ex.D-1. However, suit portion ABC touches the said road between points ‘B’ and ‘C’ and the same is not part of khasra No.1616. Consequently, observation of the Courts below that no portion of khasra No.1616 touches the aforesaid road is erroneous, but at the same time, it does not affect the merits of the instant lis because the suit portion is part of khasra No.1613 of the plaintiffs and is not part of khasra No.1616 of the defendant. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the Courts below in favour of the plaintiffs is justified by the evidence on record and is not RSA No.2824 of 2009 (O & M) - 6 - shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence so as to warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. (L. N. MITTAL) JUDGE 04.05.2011. A.kaundal