Regular Second Appeal No. 409 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 409 of 2006 Date of Decision: 5.2.2009 *** Vidhya Dhar .. Appellant VS. Ram Niwas & Anr. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Sanjay Mittal, Advocate for the appellant. None for respondent No.1. *** ARVIND KUMAR, J. After having lost concurrently lost before two Courts below in a suit for permanent injunction, the appellant-defendant No.1 has approached this Court by way of filing the instant regular second appeal and has laid challenge to the judgments and decrees passed by the Courts below. The plaintiff-respondent No.1 got instituted a suit against the appellant and respondent No.2 seeking permanent injunction by restraining them from interfering in his peaceful possession over khasra No.685 in which the plaintiff was a co-sharer and also sought relief of direction to the defendants to remove the encroachment which they made during pendency of the suit. It emerges out from the records that although the stand of the defendants was of denial, but nothing worth was produced by them to discredit the report of Ex.PW4/A, prepared by PW4 Om Parkash, retired Naib Tehsildar and other evidence produced on record by the plaintiff wherein the plaintiff along with other co-sharers was found to be co-owner of the property comprised in khasra No.685 and the appellant was found in Regular Second Appeal No. 409 of 2006 2 unauthorized occupation over some part of khasra No.685 by constructing three shops thereupon. Although, the report Ex.PW4/A prepared by PW4 has been questioned by learned counsel for the appellant on the ground that since he was not appointed by the Court as Local Commissioner, therefore no implicit reliance is to be placed thereupon. But there is no force in this contention. The said demarcation, leading to submission of report Ex.PW4/A was concurrently found carried out in accordance with the instructions/ rules on the subject and that too in the presence of the appellant, who though came at the spot, but as emerges out from the judgment, refused to append his signatures thereupon. Thus, finding the report Ex.PW4/A prepared by PW4, whose integrity and carefulness remained unquestioned by the appellant, helpful in adjudicating the lis between the parties, both the Courts below rightly took into consideration while granting relief of the plaintiff. Although an attempt was made to take benefit from Masavi (Ex.P1), which was found not containing the complete particulars of khasra No.685 and only figure 5 was visible, but when the same was read in relation to the entries made in the Field Book (Ex.D4), it was rightly held that it is so only because of rough use of Masavi and in fact khasra No.685 to 690 are from south to north in one line and number “5” actually shows khasra No.685 and it cannot be said that khasra No. 685 is not in existence. That apart the defendant-appellant also took a self- contradictory plea. On the one hand he averred that he has raised construction on his own land whilst on the other hand, he branded his adverse possession over the suit property. Since the construction was found raised recently and not 15 years old, as pleaded by the defendant and his possession over the suit land was found to be that of trespasser, the learned Courts below rightly restrained the appellant from interfering in the possession of the plaintiff and rightly directed him to hand the the vacant possession thereof after removing the encroachment which they raised during pendency of the suit. Even the suit by one of the co-sharer without impleading the other co-sharers was found very much maintainable in view of the law laid down in the case of Ajmer Singh & Ors. Vs. Shamsher Singh & Ors. 1983 PLJ 585 (P&H)(Full Bench). Nothing has been shown to take a contrary view than that of concurrent findings recorded by the Courts below. No substantial question of law, which is sine qua non for Regular Second Appeal No. 409 of 2006 3 admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE February 5,2009 Jiten