R.S.A. No. 2349 of 2001 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2349 of 2001 (O&M) Date of decision: 7.12.2009 Chuni Lal (Deceased) through LRs and another .. Appellants v. Khemu (Deceased) through LRs and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. C. B. Goel, Advocate for the appellants. Mr. Arun Jain, Senior Advocate with Mr. Sunil Sharma, Advocate for the respondents. ... Rajesh Bindal J. The plaintiffs are in second appeal before this Court against concurrent findings of fact recorded by both the courts below, whereby the suit filed by them was dismissed. Initially, the appellants had filed the suit for permanent injunction. During the pendency thereof, by way of amendment, relief of possession was also sought. The facts, as have been noticed by the learned lower appellate court in paragraph 3 of the impugned judgment are extracted below: “3. Substantively the case of the plaintiffs/ appellants is that the plaintiffs/appellants are owners in possession of agricultural land to the extent of 2/3rd share in khasra No. 902 measuring 1 Bigha 16 Biswa Pukhta situated within the revenue estate of village Wazirabad, Tehsil and District Gurgaon. The other 1/3rd share in the suit land is in possession of Mahabir, Ram Nath, Roshan Lal sons of Har Narayan, Rajpal, Satpal, Jaipal and Mahi Pal sons of Kirpa. All the above persons have constructed their four boundary wall in their 1/3rd share as shown in the site plan by letters ABEF while the plaintiffs are in possession of portion marked by letters EFCD in the site plan. The plaintiffs got the above share in compromise with the persons mentioned above. The defendants along with other persons are owners in possession of agricultural land bearing khasra No. 901 R.S.A. No. 2349 of 2001 [2] which is adjoining to Khasra No. 902. The defendants wanted to encroach and dispossess the plaintiffs by raising construction on the red portion of the property marked by letters ELDM. During the pendency of the suit the defendants forcibly encroached upon the portion of khasra No. 902 shown by letters ELDM by installing the tubewell and digging the Jhera therein and also obtained electric connection. The request of the plaintiffs/ appellant was declined to vacate the portion in dispute by the defendants/respondents, then the suit was filed. On the other hand, the defendants/respondents contested the suit taking certain preliminary objections stating on merits that the plaintiffs/ appellants are not owners in possession of undivided 2/3rd share of the land bearing khasra No. 902. The wall was constructed on the boundary line separating the land of khasra No. 902 from the land of khasra No. 901. The plaintiffs/ appellants and the other co-sharers have raised pucca construction over their portion and the subsequent purchasers have also raised pucca construction as shown in site plan by letters DEFC in yellow and black colour. The road carved out by the State passes through the land of the plaintiffs and the area under the road was acquired by the Haryana State and the plaintiffs/appellants and the other co-sharers received compensation also. There is no encroachment of any portion of the land in dispute by the defendants/respondents, rather the plaintiffs/appellants are in possession of more land than they are entitled in khasra No. 902. The plaintiffs/appellants have also raised their western pucca boundary wall which shows that no land of the plaintiffs/appellants is left towards the West of the boundary wall raised by the plaintiffs/appellants.” Assailing the findings recorded by the learned courts below, learned counsel for the appellants submitted that vide order passed by this Court on 25.2.2008, Local Commissioner was appointed and as per report dated 9.4.2008 thereof, it has been categorically found that the respondents are in possession of 3 Biswas and 4 Biswanis = 554.5 square yards of land forming part of khasra No. 902, which is admittedly owned by the appellants. Once the ownership of the land is not in dispute and even in the report of the Local Commissioner, it has been found that the same is in unauthorised possession of the respondents, the suit filed by the appellants for possession deserves to be decreed. Both the courts below had proceeded on the assumption that demarcation carried out was not in terms of the R.S.A. No. 2349 of 2001 [3] set rules as pucca points were not fixed. However, that irregularity has now been taken care of as the demarcation has been carried out after fixing pucca points in the presence of the parties. On the other hand, learned counsel for the respondents submitted that it is a case where the appellants themselves did not appear in the witness box. No site plan has been produced on record. The plaint is totally silent about the area, which has been allegedly encroached upon by the respondents, though owned by the appellants. The entire area in the vicinity is constructed. It is impossible to carry out the measurements at the site as no pucca point can possibly be fixed as there are houses in the vicinity. In fact, the land in the vicinity was acquired and this portion having abadi was left out only because of construction. The appellants had not approached the court with clean hands as they had failed to mention the factum of acquisition of part of their land, which reduced their holding considerably. Even in the demarcation carried out in terms of the order passed by this Court, the Local Commissioner could not fix any pucca point. He merely referred to some outer walls of the houses as pucca points, which cannot be accepted as such. Further, it was submitted that in the earlier litigation between the co-sharers, in which the appellants were the parties, a site plan was produced by Chuni Lal, one of the appellants, in terms of which a well was at the place of a common wall shared by the parties and the boundary wall was straight. Even as per the site plan mark `A' produced on record, the appellants have shown the well at the common wall, but the boundary wall of the plot has been shown a bit bent. However, it is not in dispute that the well is at the place of joint wall. He further submitted that the site plan, produced by one of the appellants in the earlier litigation, could not be put to him in his cross-examination, as he had not appeared in the witness box. Finally, it was submitted that the appellants, who had approached the Court, had to stand on their own legs and they could not find fault with the evidence led by the respondents and the case set up could not be proved with the evidence led by the appellants and the suit was rightly dismissed. In response to the contentions raised by learned counsel for the respondents, learned counsel for the appellants submitted that the issue regarding earlier litigation between the co-sharers of the appellants was not considered by the court below and the same cannot be referred to before this Court. He further submitted that at the time of demarcation in terms of the order passed by this Court, no objection was raised by the respondents, hence the same cannot be considered, especially regarding the fixation of pucca points. After hearing learned counsel for the parties, I do not find any merit R.S.A. No. 2349 of 2001 [4] in the present appeal. From a perusal of the plaint, it could not be made out as to how much area is owned by the appellants and how much part of it was allegedly threatened to be encroached upon by the respondents, as initially the suit was merely for permanent injunction. Though during the pendency thereof, it was amended to claim the relief of possession as well, however, the particulars of the area encroached upon were still missing and even no court fee was affixed. The site plan, which was annexed with the plaint, was not proved on record as the same was merely a marked document. As against this, the respondents produced on record certified copy of the earlier litigation between the appellants with co- sharers as Ex. DW12/A and also site plan produced on record there under the signatures of one of the appellants, namely, Chuni Lal. In terms of this site plan, there was a well just at the common wall shared by both the parties. Even as per site plan produced on record by the respondents as Ex. DW14/A, the well has been shown at the common wall of the properties of both the parties. The learned court below has also discussed the fact that some of the land forming part of khasra No. 902 was sold by other co-sharers and the subsequent buyer had raised construction leaving no scope for encroachment of the land in the manner, sought to be projected by the appellants. It is also a fact that the land along with the entire boundary with the respondents is not owned by the appellants. Though encroachment of land by the respondents is claimed in a triangle shape towards khasra No. 902, but still it is only the appellants whose only part of the land has been allegedly encroached who had filed the suit and there is no allegation by any other co-sharer in khasra No. 902 alleging any encroachment by the respondents. Considering the aforesaid facts, in my opinion, it is a case where the findings recorded by both the courts below are plain and simple findings of fact. The same do not give rise to any question of law, much less a substantial question of law. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge 7.12.2009 mk