Regular Second Appeal No. 1728 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1728 of 2008 Date of decision : January 27, 2010 Sant Singh and others ....Appellants versus Gulab Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arun Jain, Senior Advocate with Mr. Vishal Goyal, Advocate, for the appellants L.N. Mittal, J. (Oral) This is second appeal by defendants who have remained unsuccessful in both the courts below. Respondents filed suit for possession of 63 gathas of land being part of khasra no. 546 towards north east adjoining khasra no. 546/1 situated in village Sohana, by demolition of boundary wall raised by the defendants. The plaintiffs claimed themselves to be owners of land measuring 5 kanals 9 marlas comprised of khasra no. 546. It was alleged that defendants who are owners of adjoining land comprised of khasra no. 546/1 have encroached upon disputed portion measuring 63 gathas of the land of the plaintiffs comprised of khasra no. 546. Regular Second Appeal No. 1728 of 2008 -2- The defendants, however, pleaded that they raised their construction over their plot comprised of khasra no. 546/1 after taking demarcation and there is no encroachment by them over the land of the plaintiffs comprised of khasra no. 546. Learned Additional Civil Judge (Senior Division), Kharar vide judgment and decree dated 29.1.2003 decreed the suit of plaintiffs for possession of 6 marlas land being part of khasra no. 546 towards north east adjoining khasra no. 546/1, by demolition of wall raised by the defendants, on finding that the defendants have made encroachment over the said portion of the land of the plaintiffs as depicted by the Local Commissioner on demarcation. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Ropar vide judgment and decree dated 21.11.2007. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants referred to paragraph no. 14 of the judgment of the lower appellate court. However, the said paragraph simply contains the contentions raised on behalf of the appellants before the lower appellate court. On the other hand, perusal of the file reveals that Local Commissioner made demarcation and found the defendants to have encroached upon 6 marlas land of the plaintiffs comprised of khasra no. 546/1. The Local Commissioner has been examined in evidence. Objections preferred by the defendants against the report of the Local Commissioner were also dismissed. There is concurrent finding of fact by Regular Second Appeal No. 1728 of 2008 -3- both the courts below regarding encroachment made by the defendants on the aforesaid part of the plaintiffs' land for which their suit has been decreed. The said finding is based on appreciation of evidence, particularly demarcation report made by the Local Commissioner and the said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Learned counsel for the appellants vehemently contended that Local Commissioner found that the road has not been laid at the site meant for the road and therefore, defendants have been found to have encroached upon the land of the plaintiffs. In other words, if the road is held to be laid on the correct site, there is no encroachment by the defendants. However, this contention does not help the appellants. In fact, two Local Commissioners were appointed in the case. Both the Local Commissioners found on demarcation that the road had not been laid at the correct site. Report of first Local Commissioner was set aside and second Local Commissioner was appointed. The second Local Commissioner also found that the road has not been laid at the correct site. Consequently, it was determined by Local Commissioner that the defendants had encroached upon the land of the plaintiffs. Learned counsel for the appellants contended that another Local Commissioner may be appointed for demarcation of the respective land of the parties. However, no justification for the same is made out. On the preceding date of hearing, learned counsel for the appellant was granted adjournment to seek instructions if the appellants are ready to pay reasonable compensation to the respondents for the area for Regular Second Appeal No. 1728 of 2008 -4- which the suit has been decreed. After seeking instructions, learned counsel for the appellants states that the appellants would be ready to pay reasonable compensation for the area if any of the plaintiffs found to have been encroached by the defendants on re-demarcation that may be ordered by this Court. However, no justification for ordering another demarcation is made out. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L.N. Mittal ) January 27, 2010 Judge 'tiwana'