RSA No.4034 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4034 of 2011 (O&M) Date of Decision: 14.11.2011 Shiv Narain & Ors. ...Appellants Vs. Brijpal & Ors. .....Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.Ashwani Gaur, Advocate, for the appellants. --- A.N.Jindal, J. This is defendants' appeal against the judgment and decree dated 29.08.2011 passed by the Additional District Judge, Palwal, dismissing the appeal preferred by the defendants Nos. 2 to 5, namely Shiv Narain, Dharampal, Dharambir sons of Ratti and Deep Chand son of Khecharu, upholding the judgment and decree RSA No.4034 of 2011 2 passed by the trial court dated 12.3.2009. Brief facts of the case are that the plaintiff/respondent Lal Chand (now deceased) represented through his legal representatives had filed a suit for mandatory injunction on the allegations that the plaintiffs are the owners and in physical possession of the residential plot bearing Rect No. 143 Killa No.5 measuring 9 marals situated in the revenue estate of village Rundhi Tehsil Balabgarh, District Faridabad and it abuts a thoroughfare comprised of khasra No.143 Killa No. 4 measuring 8 kanals having been carved out at the time of consolidation of holdings which took place in village Rundhi. The defendants have encroached some part of the passage in front of plot No.143 Killa No.7 for which they have no right to do so. Thus, he filed a suit for mandatory injunction for removal of the encroachment. Defendant No.1 did not deny the existence of the passage in his written statement but further submitted that he is owner of a plot bearing No.143 measuring 8 marls adjacent to the passage but he has not denied encroachment over any part of the passage. He has also denied if he has encroached upon 4' wide passage. Defendants No.2 to 5 in their written statement denied all the allegations besides taking some preliminary objections. They denied the plaintiffs to be owners of the plot bearing No.143 measuring 7 marlas and they also denied if they had encroached upon any part of the plot. They also challenged the demarcation report dated 16.3.2004 recorded by Tehsildar, Palwal being the result RSA No.4034 of 2011 3 of fraud and collusion. Defendant No.7 filed written statement admitting the claim of the plaintiffs and further alleged that Gram Pancnayat had tried to get removed the encroachment but the defendants No.1 to 5 did not agree to it. From the pleadings of the parties trial court framed the following issues:- 1. Whether the defendant has made an encroachment of the passage bearing Rect No.143, killa No.4 and has blocked said passage? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD 6. Whether the defendant is entitled to special costs? OPD 7. Relief. Both the parties led evidence. After scrutiny of evidence, the trial court decreed the suit, whereas appeal preferred by the defendants was dismissed. First contention raised by the counsel for defendants No.2 RSA No.4034 of 2011 4 to 5/appellants is that basic document in order to prove the breadth of the passage is the demarcation report Ex.DW 4/A pertaining to the year 1984. After April 10, 1974 much water had flowed. Later on during the course of arguments, much stress was not given on the said report. Even otherwise, said report being not between the parties and not conforming to the instructions issued by the Financial Commissioner (Revenue), regarding demarcation, the same is of no consequence. After construction has been raised by the parties, the two reports came into existence which indicate quite altogether different situation. Therefore, no question of banking upon the said report arises. Challenge to the report dated 16.03.2004 is that the same is also not correct. As a matter of fact, plaintiffs had filed a suit for mandatory injunction on 4.3.1999 against only Bharat Lal as well as the Gram Panchayat, wherein the Gram Panchayat was proceeded against ex parte. In that case, local commissioner was appointed by the court vide order dated 7.3.2004 and he submitted his report on 16.3.2004 which recorded that it was not only Bharat Lal defendant No.1 who had encroached upon passage but other defendants (now appellants) had also encroached upon the said passage. Thereafter, on the application filed by the plaintiffs, defendants No.2 to 5 were impleaded as parties and they had also contested the suit. After evidence was closed, defendants No. 2 to 5 had moved an application for fresh demarcation which was allowed on 13.12.2007 and the local commissioner submitted his report on RSA No.4034 of 2011 5 4.3.2008 indicating the following encroachments over the passage:- Khasra Nos. Name of Owners Extant of Encroachment 143/1 Paltu son of Pearu 37 sq. yards 143/3 Khacharu s/o Chet Ram 32 sq. yards 143/2/2 Deep Chand etc. 2 sq. yards 143/2/1 Bhoop Lal s/o Ram Lal 30 sq. yards 143/7 Bharat Lal s/o Pitamber 6 sq. yards (defendant No.1) Though the report dated 4.3.2008 was prepared by the local commissioner as per orders of the court passed on the application filed by defendants No.2 to 5, yet they are disputing the said report saying that they were not given notice but this argument does not weigh with the mind of the court as the defendants themselves being the persons to get the local commissioner issued now cannot come to contend that they were not notified about the spot inspection. On perusal of the report dated 4.3.2008, it transpires that notice was given to the defendant Nos. 2 to 5 by the local commissioner of the date of demarcation but they did not arrive at the spot on the date fixed. The report appears to be well founded and elucidates all the points. As per Order 26 Rule 10 Sub Rule (ii) of the Code of Civil Procedure the report of the local commissioner would be treated as a part of evidence and shall form part of record. That apart, the report of the local commissioner oral evidence also indicates about alleged encroachment made by the appellants as such the concurrent findings recorded by both the RSA No.4034 of 2011 6 courts below cannot be said to be perverse, illegal or without appreciation of evidence on record and cannot be dissented by this court. No substantial question of law arises in this appeal for determination by this court. Dismissed in limine. (A.N.Jindal) 14.11.2011 Judge rp