IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1123 of 2010 (O&M) Date of Decision : 19.3.2010 Daljit Kaur and others ....Appellants Versus Shankar Dass and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. S.S.Toor, Advocate for the appellants. ..... MAHESH GROVER, J. C.M.No.3431-C of 2010 Allowed as prayed for. C.M.Nos.3432 & 3433-C of 2010 in/and R.S.A.No.1123 of 2010 The instant Regular Second Appeal is directed by the defendants against the judgments of the trial Court dated 15.11.2007 and that of the first Appellate Court dated 5.11.2009. The plaintiffs/respondents filed a suit for possession and permanent injunction seeking to restrain the defendants from interfering in their possession over the suit property. They have described the suit property and also pleaded that the respondents who are trying to change the nature of the suit land by digging the earth should be restrained from doing so. The appellants took up numerous R.S.A.No.1123 of 2010 (O&M) -2- objections and pleaded that they had purchased the land from their vendors and were in possession of their respective shares which were depicted therein. They denied the averments of the plaintiffs/respondents and pleaded that the land of the plaintiffs/respondents and the appellants was clearly demarcated by an old Butt which had been existing for the last 45 years and that the respondents are unnecessarily raising boundary dispute with them. The parties went to trial on the issues which primarily related to the pleadings of the parties and covered the controversy. A Local Commissioner was appointed to go to the site and ascertain the extent of possession of the parties and encroachment, if any. After following the procedure of law, Kanungo (a revenue official), who was appointed as Local Commissioner, determined the fact that the appellants had encroached upon the suit property without any right. After consideration of this report, both the Courts determined the issue against the appellants. In the instant appeal it is contended that the appellants are in possession of their own area and if any area was in excess, the plaintiffs/respondents were entitled to recover the same from their vendors and since they have not been impleaded as parties, the suit was bad and ought to be dismissed. It was also contended that the report of the Local Commissioner could not have been relied upon as the procedural law was not followed and no pucca point was fixed. I have considered the pleas raised by the learned counsel for the appellants. In so far as the first plea that the vendors were not impleaded as parties is concerned, the same is meaningless as no R.S.A.No.1123 of 2010 (O&M) -3- objection was taken by the appellants in the written statement. This plea which should have been taken at the first instance as it is an irregularity which can be corrected by the appellants if confronted with such a plea initially at the stage of suit and such plea cannot be entertained in the Regular Second Appeal as it shall prejudicially effect the case of the plaintiffs/respondents. The contention is therefore rejected. In so far as the second plea that the procedural law was not followed and no pucca point was fixed, is concerned, that too is meaningless. The contents of the report of the Local Commissioner have been noticed in the impugned judgments wherein it has been stated that the Local Commissioner got the measurement done from a pucca point and he also asked the parties as to where there is any other fixed point in the village from where measurement can be effected, to which both the parties and the persons present there replied in the negative thus leaving the revenue official with no other option but to carry out the demarcation after fixing a pucca point. In any eventuality, this is purely a question of fact which has been determined by the courts below and no substantial question of law arises for the consideration of this Court in the instant appeal which is totally devoid of any merit and is dismissed. Besides, the appeal is barred by a delay of 32 days which has not been satisfactorily explained. The stay application is also dismissed. 19.3.2010 (MAHESH GROVER) JUDGE dss