IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4546 of 2009 (O&M) Date of decision: 30th August, 2011 Harmail Singh and others … Appellants Versus Nar Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Dr. Anmol Rattan Sidhu, Senior Advocate with Mr. Vishal Deep Goyal, Advocate for the appellants. Mr. P.K. Ganga, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by defendants to the suit. Vide order dated 7th December, 2009, this appeal has already been dismissed qua appellants No.1, 2 and 4 to 6. Thus, the present appeal survives only qua appellant No.3-Gurcharan Singh. A Coordinate Bench on December 7, 2009 passed the following order: “The Courts below have decreed the suit of the plaintiff-respondent giving a concurrent finding of fact that there has been encroachment made by the defendants- appellants on the street in dispute which has been ordered to be removed. Counsel for the appellants submit that Gurcharan Singh, appellant No.3, is Sarpanch of the village and that DW.3, Chowkidar of the village has established that Gurcharan Singh is not residing in the house in which encroachment has been made but he is living in a house situated in Dhani. Even Gurcharan Singh appeared as Regular Second Appeal No.4546 of 2009 (O&M) DW.4, and denied to have raised any construction of the residential house by encroaching upon the street of the village. He even expressed his ignorance regarding Khasra No.450/1(0-7), being a Gali. It is contended by counsel that in view of the said circumstances neither the liability of appellant Gurcharan Singh is established nor a decree could have been passed against him. It is submitted that in case decree is permitted to stand against him, the same may be utilized to prejudice his rights as Sarpanch. Notice of motion for 09.02.2010, to the extent of absolving appellant No.3 from the liability of mandatory injunction. Operation of the decree against appellant No.3, Gurcharan Singh, will remain inoperative. No interim relief against the other appellants.” Mr. P.K. Ganga, Advocate appearing on behalf of the respondent, has stated that in case appellant No.3-Gurcharan Singh undertakes that he will not encroach upon the passage and will cause no hurdle in the peaceful use of the same, the present appeal filed by appellant No.3-Gurcharan Singh may be partly allowed to the extent that it will not be construed that appellant No.3-Gurcharan Singh was an encroacher. In view of the broad consensus arrived at between the parties, present appeal is disposed of by observing that in case appellant No.3-Gurcharan Singh files an undertaking in the Executing Court that he will not cause any interference or hurdle in the peaceful use of the suit property i.e. the street (Gali Share-aam), appellant No.3- Gurcharan Singh shall not be construed in any proceedings as an 2 Regular Second Appeal No.4546 of 2009 (O&M) encroacher and no adverse inference will be drawn against him so far as his electoral rights are concerned. [KANWALJIT SINGH AHLUWALIA] JUDGE August 30, 2011 rps 3