R. S. A. No. 3262 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3262 of 2010 (O&M) Date of Decision : April 18, 2011 Jai Kishan and another .... Appellants Vs. Ram Diya and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rajbir Sehrawat, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 9621-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 105 days in re-filing the appeal is condoned. C. M. No. 9622-C of 2011 : Allowed as prayed for. Main Appeal : Plaintiffs 1 and 3 having failed in both the courts below are in second appeal. R. S. A. No. 3262 of 2010 (O&M) 2 Plaintiffs filed suit for possession of land depicted by letters ABEF in the site plan attached with the plaint alleging that the same is part of Plot Nos. 17 and 18 belonging to Shiv Mandir of Brahman Community. The plaintiffs are also Brahmans and are, therefore, owners of the suit land. Defendants have encroached upon the same. Accordingly, plaintiffs sought possession of the suit land or of the portions of Plot Nos. 17 and 18, which may be found in unauthorized possession of the defendants, on demarcation. Defendant no.1 had died before the filing of the suit, and therefore, his name was deleted from the array of defendants. Defendants no.2 to 4 (respondents no.1 to 3 herein) contested the suit. It was pleaded that both the parties are Brahmans by Caste. It was denied that defendants have encroached upon any portion of the property of Village Community. Defendants are in possession of the land (which is in their possession) since the year 1950 as owners without any obstruction. They have raised boundary wall of the said land and are using it as gher. It is part of their house. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sonepat, vide judgment and decree dated 24.12.2008, dismissed the plaintiffs' suit. First appeal preferred by plaintiffs no.1 and 3 has been dismissed by learned Additional District Judge, Sonepat, vide judgment and decree dated 24.12.2009. Feeling aggrieved, plaintiffs no.1 and 3 have preferred the instant second appeal. R. S. A. No. 3262 of 2010 (O&M) 3 I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that it is undisputed that Plot Nos. 17 and 18 are of Shiv Mandir, as per earlier partition decree. It was next contended that defendants have encroached upon disputed portion of Plot Nos. 17 and 18, as found on demarcation vide demarcation report Ex.PW-5/A conducted in the previous suit instituted by father of plaintiff no.2 and others. I have carefully considered the contention, but the same cannot be accepted. The aforesaid demarcation report was got proved by examining official from of office of Tehsildar, who identified the signatures of retired Kanungo, who had made the demarcation because the said Kanungo had since died. However, mere proof of his signatures on the report is not sufficient to prove the demarcation made at the spot and to prove that defendants have encroached upon any part of Plot Nos. 17 and 18 belonging to Shiv Mandir. Defendants got no opportunity to test the correctness or veracity of demarcation made at the spot. It is significant to notice that if the retired Kanungo, who made the aforesaid demarcation, had died, nothing stood in the way of plaintiffs to obtain fresh demarcation in the instant suit. However, the plaintiffs did not prefer to do so for reasons best known to them. Obviously, adverse presumption has to be drawn against plaintiffs on this count. In this R. S. A. No. 3262 of 2010 (O&M) 4 context, it is significant to notice that the plaintiffs, even in the plaint, specifically prayed that possession of the portion of the aforesaid plots, which may be found to have been encroached upon by the defendants on demarcation, may be got delivered. Thus, in the plaint itself, the plaintiffs contemplated demarcation of the plots in question in the instant suit, but in spite thereof, the plaintiffs did not get the plots demarcated to prove that defendants have in fact encroached upon any portion of the plots in question. Learned counsel for the appellants vehemently contended that demarcation report Ex.PW-5/A was made by the Local Commissioner appointed by the Court in the previous suit, and therefore, the said report is per se admissible in evidence. The contention is misconceived and bereft of any merit because the said report had to be taken into consideration in the previous suit, in which the Local Commissioner had been appointed. The said report cannot be used as evidence in the instant subsequent suit without getting the said report properly proved. In addition to it, the material question to be determined is regarding the probative or evidentiary value to be attached to the aforesaid demarcation. Since the defendants got no opportunity to cross-examine the retired Kanungo Bhagwan Singh, who had made this report, this report loses its probative value in the instant suit. Both the courts below have examined and analyzed the evidence in detail and have arrived at concurrent finding against the R. S. A. No. 3262 of 2010 (O&M) 5 plaintiffs. The said finding is not shown to be perverse or illegal 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. The appeal lacks any merits and is accordingly dismissed in limine. April 18, 2011 ( L. N. MITTAL ) monika JUDGE