RSA No.3256 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3256 of 2010 (O&M) Date of decision: 18.8.2010 Ram Chander ......Appellant(s) Versus Ravinder and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.S. Sangwan, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) This regular second appeal has been preferred by defendant No.1 challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for possession was decreed. As per the averments, the plaintiff-respondents filed a suit for possession against the defendants alleging that the plaintiffs and proforma defendants were owners of the suit land measuring 8 kanals 16 marlas comprised in Khewat No.26 Khatoni No.35 Killa No.8//13. The suit property was not partitioned between the plaintiff and proforma defendants. It was alleged that the suit property was situated near village Nimbi and the land of contesting defendants was adjoining with the suit land who encroached upon the suit property. It was further alleged that the plaintiffs moved an application before the Assistant Collector IInd Grade, Mahendergarh for demarcation which was decided on 15.7.1998 and the suit land was demarcated by the Office Kanungo. It was further alleged that the contesting defendants had no share in the suit land and the same had come to the share of the plaintiffs and proforma defendants. They requested the defendants several times to return the possession of the suit RSA No.3256 of 2010 (O&M) 2 land but to no effect. Hence, the present suit. Upon notice, defendants No.1 to 6 filed their joint written statement raising various preliminary objections. On merits, it was averred that the contesting defendants-appellants were owners in possession of the suit land and the plaintiffs and proforma defendants had no concern with the ownership and possession of the suit land. It was further submitted that the demarcation report dated 15.7.1998 was wrong, illegal, null, void and not binding upon their rights. While denying the other averments, dismissal of the suit was prayed for. After perusing the evidence on record and considering the arguments raised, the trial Court decreed the suit. Feeling dissatisfied from the aforesaid judgment and decree of the trial Court, the defendant-appellant had preferred an appeal before the Lower Appellate which was also dismissed. While dismissing the appeal, the Lower Appellate Court observed as under: “The simple dispute in the present case is as to whether the contesting defendants have encroached upon the land of the plaintiff and proforma defendants are owners of the disputed property and during evidence demarcation report Ex.PW2/A was proved on record and this demarcation report was carried out in compliance of the orders of the Assistant Collector 1st Grade and report Ex.PW2/A reflects that survey stones were located and one survey stone was found in killa No.8//1 and then after another survey stone was located on Khasra No.8/21 on the southern-western corner. Both the survey stones have shown at point A and B in the site RSA No.3256 of 2010 (O&M) 3 plan prepared by the local commissioner and then after in the report it is mentioned that at a distance of ten killas another survey stones was located in killa No.91//5 and that stone was shown at point C in the accompanied site plan prepared by the local commissioner EX.PW2/C. The report and the site plan reflects that the survey stones from different corners were located and then demarcation was carried out. The contention of the appellant that the land which was demarcated is of two different villages pales into insignificance because the survey stones were laid during settlement proceedings and the survey stones in the straight line are irrespective of different villages and as such the demarcation report Ex.PW2/B is a correct report and demarcation was carried out according to the revenue instructions. During the pendency of the suit another local commissioner was appointed by the court and that report of the local commissioner is per se admissible in evidence as no objections were filed. Report dated 8.5.2005 is there no record and according to this report again the demarcation was carried out with the help of pucca survey stones and again the encroachment was found to be that of 9 marlas. There is nothing on record to disbelieve the reports. During the course of arguments, it was contended that both the reports are contradictory as in Ex.PW2/A the encroachment is shown as 6 marlas where in report RSA No.3256 of 2010 (O&M) 4 dated 8.5.2005 submitted by the local commissioner appointed by the court the encroachment was shown to that of 9 marlas. Admittedly, there is difference of the area encroached upon in the both the reports and according to report Ex.PW2/A the encroachment was found to be of 6 marlas and according to the report of the local commissioner appointed by the court the encroachment was found to the extent of 9 marlas. This minor variation is not going to render the reports inadmissible because additional area might have been encroached after institution of the suit. The suit has been decreed for removal of the encroachment to the extent of 6 marlas and as such the encroached area differently shown in both the reports is not going to render the reports in admissible and when the demarcation was carried out according to the instructions issued by the revenue department both the reports are admissible and can be made basis for the decision. The witnesses present at the time of demarcation were also examined, and PW2 and PW4 categorically stated that the demarcation was carried out with the help of Lal Pathar and as such the demarcation reports are sufficient to justify the conclusion of the lower court.” Still not satisfied, the appellant has preferred the instant appeal. Learned counsel for the appellant has vehemently argued that the demarcation report Ex.PW2/A could not have been taken into RSA No.3256 of 2010 (O&M) 5 consideration for decreeing the suit of the plaintiff-respondents, the same being not in accordance with the High Court Rules and Orders, as the pucca points were not identified and moreover, the report was not prepared in accordance with the Rules. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(A) Whether the judgment and decrees of both the courts below based on the demarcation report Ex.PW2 are sustainable in eyes of law demarcation report itself is illegal and against the Financial instructions and against the High court rules and orders? (B) Whether the findings of the courts below are without evidence and are sustainable in the eye of law? (C ) Whether the demarcation which is not as per procedure prescribed can be a sole ground to restrain them and holding the plaintiff to be the owner of the land in dispute? (D) Whether the judgment and decree under appeal are tenable in the eyes of law?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. It may be noticed that the Lower Appellate Court while dismissing the appeal filed by the appellant has recorded a finding of fact that the report of Local Commissioner Ex.PW2/A reflects that all the survey stones were located and were identified. Moreover, during the pendency of the suit, another Local Commissioner was appointed by the RSA No.3256 of 2010 (O&M) 6 Court and no objections were filed to the report given by the Local Commissioner and it was noticed that in the aforesaid report also, it was found that the defendants had encroached upon the suit land. In view of the aforesaid evidence on record, it cannot be argued that the findings of the Lower Appellate Court are perverse and are liable to be set aside. In this view of the matter, I find no merit in this appeal. No other point was urged. No substantial question of law arises in this appeal. Dismissed. August 18, 2010 (RAKESH KUMAR GARG) ps JUDGE