R.S.A. No. 801 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 801 of 2009 (O&M) Date of Decision : 18.2.2009 Market Committee, Bilaspur .......... Appellant Versus Arvinder Singh (Legal representative of late Sh. Gurmukh Singh) ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Amit Sharma, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 2278-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of 130 days in filing the regular second appeal. It has been averred in the application that the delay of 130 days in filing the appeal has occurred as sanction was required to be taken before filing any appeal, which was granted only on 11.12.2008. Thereafter the delay occurred in the office of the counsel for preparing the appeal and going through the relevant papers. For the reasons stated in the application, sufficient ground for condoning the delay is made out. Consequently, C.M. is allowed. The delay of 130 days in filing the appeal is condoned. R.S.A. No. 801 of 2009 2 C.M. No. 2280-C of 2009 This is an application under Order XLI Rule 27 of the Code of Civil Procedure seeking permission to produce the demarcation of land in dispute by way of additional evidence. The plaintiff/respondent filed a suit for injunction restraining the defendant from demolishing or dispossessing or causing any damage to the residential house of the plaintiff marked by letters ABCD in the site plan, attached with the plaint. The plaintiff sought injunction being owner in possession of the property in dispute in pursuance to the sale deed executed in his favour. The suit was primarily contested on the ground that the land was acquired by the State Government for the benefit of the appellant, however, the plaintiff encroached upon the part of the land. The case set up, therefore, was that the house was to be demolished in order to have 2 Marlas of encroached land. The learned trial Court on appreciation of evidence recorded a positive finding of fact that the land in possession of the plaintiff- respondent was not acquired as it was in different khasra numbers. The learned Courts below also held that the plaintiff was not in possession of the excess area than in the sale deed, and decreed the suit. In appeal, no steps were taken to produce the demarcation report on record. The document sought to be produced on record is not per se admissible in evidence as it is required to be proved by leading evidence. Nor is demarcation report necessary for pronouncing judgment. No ground is made out for leading additional evidence. R.S.A. No. 801 of 2009 3 Consequently, the application is ordered to be dismissed. R.S.A. No. 801 of 2009 The defendant/appellant challenges the judgment and decree dated 2.6.2002 and 2.6.2008 passed by the learned Courts below decreeing the suit for permanent injunction restraining the defendant from demolishing or dispossessing or causing any damage to the residential house of the plaintiff marked by letters ABCD in the site plan, attached with the plaint. The suit was contested and on appreciation of evidence the learned Courts below recorded a concurrent finding of fact that theplaintiff- respondent was not in possession of the land said to have acquired for the benefit of the defendant/appellant. It was also held by the learned Courts below that the area in possession of the plaintiff is less than the area given in the sale deed and, therefore, there was no proof of encroachment of land. No evidence was led by the appellant/defendant to prove the encroachment. Primarily it was pleaded that 2 Marlas of land in possession of the plaintiff/respondent was part of the acquired land. The learned Courts below did not accept this as in the notification issued under Land Acquisition Act the number acquired are different than the one in possession of the defendant/respondent. The learned counsel for the appellant contends that the substantial question of law for consideration in this appeal is that :- “Whether the learned Courts below have erred in appreciate/ evaluate the evidence brought by the R.S.A. No. 801 of 2009 4 appellant-committee on record ? The substantial question of law as framed cannot be said to be a substantial question of law as this Court cannot reappreciate or revalue the evidence accepted by the learned Courts below to record finding of fact. No merit. Dismissed in limine. 18.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE