RSA No.4861 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 4861 of 2009 (O&M) Date of Decision: December 21 , 2009 State of Haryana & Others ...........Appellants Versus Beg Raj and Others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Ms.Shubhra Singh, Deputy Advocate General Haryana for the appellants. ** Sabina, J. Plaintiffs filed a suit for mandatory injunction . The suit of the plaintiffs was dismissed by the Civil Judge (Senior Division) Sirsa vide judgment and decree dated 15.2.2007. Aggrieved by the same, plaintiffs filed an appeal and the same was allowed by the learned District Judge, Sirsa vide judgment and decree dated 12.8.2009. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “ 3. The plaintiffs' case is that they are owners in possession of the land measuring 95 kanals 11 marlas comprised in khewat no.106 khatuni no.192,as per jamabandi for the year 2000-2001, situated RSA No.4861 of 2009 (O&M) 2 in village Randhwa Tehsil and District Sirsa and that previously the defendants after acquisition excavated the Sheranwali Distribtutory through the land of the plaintiff which was lined by the State Govt. and that in the month of December, 2003, the defendant NO.2 started the earth work of strengthening the banks of Sherwali Distributory and put the soils on its Southern side bank in the land of the plaintiffs cover the land measuring 1 kanals 16 marlas comprised in Sq. No. 112 Killa no. 1.15 and 17 without acquiring the same. The plaintiff then moved an application on 9.12.2003 for demarcation to Assistant Collector 2nd Grade Nathursari Chopta which was marked to the Kanungo halqa who demarcated the land on 14.2.2004 in the presence of both the parties and defendant no.2 found to have illegally and unauthorisedly encroached upon the said land in the width of 4 karam and that the defendants were asked to remove the same and that a legal notice was issued earlier on 26.4.2004. 3. Defendants no.1 and 2 in their joint written statement raised several preliminary objections as that of maintainability, locus standi, cause of action, estoppel, suit being time barred and that the defendants are owners in possession of the land in dispute by way of adverse possession. However, they admitted that the said distributory which was previously katcha was made pucca by the department in the year 1981-82 and that during the year 2003- 2004, it was remodeled by the Govt. by riasing the baks upto 2.5 feet and no alteration has been made by the department and that the earth work was done on the old banks and that no objections RSA No.4861 of 2009 (O&M) 3 was raised by the plaintiffs during construction of distributory in the year 1981-82 and that no violation of law was committed. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to the relief of mandtory injunction as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPP 3.Whether the plaintiffs have no locus standi and cause of action to file the present suit?OPD 4.Whether the plaintiffs are estopped by their own act and conduct to file the present suit?OPD 4(a)Whether the defendants have become owners by way of adverse possession of the land in question?OPD 4(b)Whether the suit is barred by limitation?OPD 5. Relief.” After hearing the learned counsel for the State, I am of the opinion that this appeal deserves to be dismissed. The dispute involved in the present case was as to whether defendant No.2 had encroached upon the land underneath the bank of distributory in question. Admittedly, remodelling of the bank of the distributory was done in the year 2003-2004. The appellants had raised the top level of the bank upto 2-1/2 feet . Initially, the construction of the distributory was completed in the year 1981-82. The learned District Judge in the judgment has observed that as per demarcation report, Exhibit P3, bank of the distributory was found in existence to the extent of 4-4 karmas RSA No.4861 of 2009 (O&M) 4 over the land in dispute measuring 1 kanal 16 marlas comprised in killas No. 15 and 17 towards the north. Admittedly, plaintiffs are the owner of the suit land. Thus, from the report, Exhibit P3, it was evident that the land belonging to the plaintiffs had been encroached upon at the time of construction remodelling of the banks of the distributory . Admittedly, the plaintiffs have not been paid any compensation qua the land in question. The said land was also not acquired by the State. In these circumstances, the learned District Judge had rightly decreed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge December 21, 2009 arya