IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2195 of 2005 Date of decision : March 12, 2008 Net Ram & another ..... Appellants Versus Aatu Ram & Others ..... Respondents Present : Mr. Krishan Singh, Advocate for the appellants. *** S.S. SARON, J. (ORAL) This appeal has been filed by defendants No.1 and 2-appellants Net Ram and Sheo Ram against the judgment and decree dated 08.11.2004 passed by the learned Additional District Judge, Yamuna Nagar at Jagadhri whereby their appeal against the judgment and decree of the trial Court dated 04.03.2002 has been dismissed. The plaintiff-respondent (Aatu Ram) filed a suit for possession of the suit land after demolishing the super-structure raised by defendants No.1, 2 and 4. The plaintiff claimed that he is owner of the land measuring 5 marlas and defendants No.1, 2 and 4 RSA No. 2195 of 2005 [2] had illegally encroached upon the same. Defendant No.1, it was alleged, was in illegal possession of land measuring 3 marlas, defendant No.2 was in illegal possession of land measuring 6 sarsahi and defendant No.4 was in illegal possession of land measuring 1 marla 3 sarsahi. Defendants No.1 and 4 had constructed their houses on the said land, while the land in illegal possession of defendant No.2 was lying vacant. Defendant No.3 was shown to be in illegal possession of a part of the land in the demarcation report, but actually it was defendant No.4, who was in possession of that land. Defendants No.1, 2 and 4 contested the suit. It was submitted that the suit property was in their possession since the time of their father and previously the land was being used for keeping fuel wood, cowdung cakes etc. It was after the death of their father that they had constructed their respective houses in May 1955. Since then, the defendants No.1, 2 and 4 had been residing in the respective houses without any interruption. It was claimed that the possession of the defendants No.1, 2 and 4 had ripened into ownership by lapse of time. The learned Additional Civil Judge (Senior Division), Jagadhri vide her judgment and decree dated 4.3.2002 held that the plaintiff was owner and in possession of the suit land. A reference was made to the revenue records i.e. Jamabandi (record of rights) Ex. P-4 and Khasra Girdawari Ex. P-5. From perusal of the said record, it was observed that since 1988-89 upto 1993-94, it was Aatu RSA No. 2195 of 2005 [3] Ram (plaintiff) who was owner in cultivating possession of the suit property. The suit land was gair mumkin bara. It was observed that the claim of the defendants was that they had been in possession of the suit property since the time of their fore-fathers and had raised construction by making their houses in May 1955. The said contention of the defendants was held to be not substantiated so as to prove their claim. The conclusions recorded by the learned Additional Civil Judge (Senior Division), Jagadhri have been affirmed in appeal by the learned Additional District Judge, Yamuna Nagar at Jagadhri. It was observed that the construction as per revenue record had come into existence in 1990. It was also observed that if the plaintiff had nothing to say, as had been contended by the defendants, then he would not have approached the revenue authorities for demarcation of the land in 1990. Meaning thereby that he was objecting to raising of construction from the very beginning. Learned counsel for the appellants-defendants No.1 and 2 has contended that there is clear illegality and irregularity in the judgments passed by both the Courts below. It is contended that defendants No.1 and 2 had raised their construction in 1955 and since then, they are in possession of the property. It is also contended that PW1 Rulia Ram in his deposition admits that the construction was raised in the presence of the plaintiff by the defendants. Learned counsel in support of his contentions cites Sadhu Singh v. Harnam Singh, (2000 - 3) PLR 236 (P&H) , Food RSA No. 2195 of 2005 [4] Corporation of India and another v. Dayal Singh, 1991 PLJ 425 (P&H) and M/s New Bharat Chemical Industry v. Om Parkash, 1997 (3) PLR 357 (P&H). I have given my thoughtful consideration to the contentions of the learned counsel for the appellants. However, I find no merit in the same. As has already been noticed that the learned Courts below after reference to the revenue records have held that Aatu Ram-plaintiff is the owner and in possession of the suit land as per Jamabandi (Record of Rights) Ex. P-4 and Khasra Girdawari Ex. P-5. From a perusal of the said revenue record, it was observed that since 1988-89 upto 1993-94, it is Aatu Ram (plaintiff) who is owner in cultivating possession of the suit property. Besides, the learned Lower Appellate Court has observed that the houses in question have been reflected in the revenue record from 1990. It has also been observed that the defendants had encroached upon the land of the plaintiff. Besides, it was noticed that Net Ram (defendant No.1) had stated that they had constructed the house about 10-12 years ago. DW2, however, stated that construction was raised about 40-42 years ago. However, the construction as per the revenue records came in existence in 1990. Therefore, in view of the revenue records, the oral evidence led by the defendants is in-consequential. Besides, the plaintiff had protested against the construction and he had sought demarcation from the revenue authorities in 1990 itself. Therefore, it cannot be said that the plaintiff had been dormant or had acquiesced in his RSA No. 2195 of 2005 [5] rights. It may also be noticed that the suit for possession was filed by the plaintiff on 21.03.1994. Therefore, the plea that the defendants-appellants are in adverse possession of the suit land is not remotely made out. In the case of Sadhu Singh v. Harnam Singh (Supra) referred to by the learned counsel for the appellants, the report of the Local Commissioner had established that there was encroachment made by the defendant on the area denoted by letters EFGH in the said case measuring 13.5 sq. ft. Ownership of the plaintiff therein vis-a-vis site ABCD was held to be proved on the basis of sale deed. Accordingly, plaintiff therein was held entitled to a decree of possession of site marked ABCD. However, in view of the hardship that the defendant would suffer if he was called upon to demolish the construction on area denoted by EFGH, suitable compensation as per market price for the area was ordered to be given to the plaintiff. Therefore, it may be noticed that the encroached area in the said case was 13.5 sq. ft. for which compensation as per the market price for the area was ordered to be given to the plaintiff. Same is not the position in the present case as the encroachment by the defendants has been held to be on the land measuring 5 marlas. In Food Corporation of India v. Dayal Singh (Supra) referred to by the learned counsel for the appellants, the Food Corporation of India had neither acquired the land nor paid any compensation and had constructed store over suit land. In the facts and circumstances of the said case, the plaintiff was held to be RSA No. 2195 of 2005 [6] estopped by his act and conduct, because he did not raise any objection at the time of construction. Accordingly, the plaintiff was held not entitled to a decree for possession of land but only entitled to a decree for compensation at market value of land as principles of acquiescence were applicable. In the present case, as has already been noticed, the plaintiff had sought demarcation of land in 1990 itself. Besides, in term of the revenue record, the construction came to be raised in 1990. Thereafter, the suit has been filed for possession on 21.03.1994. Even during the intervening period, the plaintiff was pursuing his remedy. Therefore, the principles of acquiescence would not be applicable in the present case. The case of M/s New Bharat Chemical Industry v. Om Parkash (Supra), it was held that the plaintiff allowed the defendant to continue with the construction despite his knowledge. Therefore, he was held to be estopped by his own act and conduct from filing the suit for injunction against the defendant. In the present case, the plaintiff has not filed the suit for injunction but has filed suit for possession of the land encroached upon by the defendants. There is no reason why a decree for possession be not passed in favour of the owner of land especially when it is established that there has been encroachment made by the defendants. The appellant has not formulated any questions of law in terms of Section 100 (3) CPC in the present case. In Para 3 of the memo of appeal, the questions of law formulated by him are :- (a) Whether the appellants are in adverse RSA No. 2195 of 2005 [7] possession of the land in dispute? (b) Whether he has affixed proper Court fee? These in my view are matters in issue in the suit and are not questions of law, leave alone substantial questions of law. For the foregoing reasons, there is no merit in this Regular Second Appeal and the same is accordingly dismissed. (S.S. SARON) JUDGE March 12, 2008 amit