RSA No.3849 of 2010 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3849 of 2010 (O&M) Date of decision:01.10.2010. Siri Ram ...Appellant Versus Baldev Singh ...Respondent CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Balwinder Singh, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. The defendant is in second appeal against the judgment and decree of the Courts below by which the suit filed by the plaintiff for possession has been decreed. While dismissing the appeal of the defendant, the learned First Appellate Court observed as under: - “11. I have considered the rival submissions of the parties. In the instant case, the respondent-plaintiff has filed suit against the appellant-defendant inter alia on the ground that the appellant-defendant encroached upon an area to the extent of 0-B-3B-10B Pukhta of the respondent-plaintiff. Before filing the suit, the respondent-plaintiff also demarcated his land by moving an application to the office of Assistant Collector 1st Grade and on the said RSA No.3849 of 2010 (O&M) -2- ****** application, Filed Kanungo of village, Bhindran demarcated the suit land on 06.06.2003 and according to his report, he found that an area to the extent of 0-B-3B-10B Pukhta has been amalgamated by the appellant- defendant in his khasra No.418/2 by demolishing the common boundary. From the report, it appears that during proceeding before the Trial Court, the respondent-plaintiff moved an another application under Order 26 Rule 9 CPC for appointment of Local Commissioner inter alia on the ground that the present suit was filed on the basis of demarcation report dated 06.06.2003 conducted by Field Kanungo, but the appellant-defendant despite service failed to appear and did not come present at the time of demarcation and to avoid any further objections from the appellant-defendant, another Local Commissioner may be appointed by invoking order 26 Rule 9 CPC. The said application was considered by the Trial Court and vide its order dated 8th January, 2005, the Trial Court appointed office Kanungo as Local Commissioner with the direction to demarcate the property, in question and to submit the report. In the said order, learned Trial Court has specifically directed that the demarcation of the Khasra No.418/1 and 418/2 bearing Khewat No.57 and Khatauni No.10 be conducted in the presence of both the parties. In pursuance of the said directions, the office Kanungo again visited the suit land and RSA No.3849 of 2010 (O&M) -3- ****** demarcated the suit property. Copy of report is Ex.P1/A. In his report Ex.P1/A, the office Kanungo has found that an area measuring 40 Karams X 1.3/4 Karams out of Khasra No.418/1 to the extent of 3B-10B Pukhta is in possession of appellant-defendant. Although objections were filed by the appellant-defendant inter alia on the ground that the Local Commissioner did not make a reference regarding pucca Burjies. However, the respondent-plaintiff in order to prove the report of the Local Commissioner has also examined him as PW2 and in his examination before the Court, he has given detail regarding the manner of demarcation and regarding his conclusion about the encroachment. According to the statement, he installed the Tharra at Khasra No.418(2) and thereafter, he came to the conclusion that an area to the extent of 1.3/4X40 karams out of Khasra No.418/1 min was amalgamated in Khasra No.418/2. Now the grievance of the appellant-defendant is that the demarcation was not conducted in another mode. Be that it may be, the Local Commissioner has demarcated both Khasra Nos.418/1 and 418/2 bearing Khewat No.57 and Khatauni No.10 and said demarcation was conducted in the presence of both the parties and thereafter, he found that there was an amalgamation of 1.3/4X40 karams excess in khasra No.418/2 and said land belongs to khasra No.418/1. Thus, viewing from any RSA No.3849 of 2010 (O&M) -4- ****** angle, it cannot be said that the findings of the learned Trial Court on issue No.1 is perverse, and against the facts and law. Thus, the contention of the learned counsel for the appellant-defendant that the learned Trial Court has wrongly relied upon the findings of the Local Commissioner is devoid of merit and deserves to be rejected.” Learned counsel for the appellant has strenuously argued that the finding recorded in aforesaid para No.11 is illegal as the report of the Local Commissioner cannot be relied upon. The submission made by learned counsel for the appellant is based on facts which cannot be re-appreciated in second appeal because as per Section 100 of the Code of Civil Procedure, the Regular Second Appeal is maintainable only on a substantial question of law and not on the issue of re-appreciation of evidence. In view of above, no substantial question of law is involved in this second appeal. Hence, I do not find any merit in the present appeal and as such, the same is hereby dismissed in limine. October 01, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE