IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3042 of 2008 Date of Decision : September 07, 2009 Smt. Gindori and others ....Appellants Versus Mahender Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.S.Sangwan, Advocate for the appellants. Mr. Amit Shivrain, Advocate for respondents No.1 and 3. T.P.S. MANN, J. (Oral) Suit filed by Mahender Singh-respondent No.1, was decreed by the learned Civil Judge (Senior Division), Jhajjar, on 10.1.2006 and he was held entitled to possession of the suit property. Aggrieved of the same, the legal representatives of Hukam Singh-defendant filed the first appeal under Section 96 of the Code of Civil Procedure but the same was dismissed by the learned Additional District Judge, Jhajjar, on 31.5.2008. They are now before this Court in a second appeal filed under Section 100 of the Code. The case of Mahender Singh-plaintiff, as set up by him in his plaint, was that he alongwith proforma defendants No.1 to 3, namely, Mange Ram, Rajender and Chander was owner of an ancestral plot marked by letters ABCD in the site plan attached with the plaint. About four years earlier to the filing of the suit, Hukam Singh and Man Singh-defendants R.S.A. No. 3042 of 2008 -2- occupied the disputed portion marked by letters ABEF and shown in red colour in the site plan, which belong to the plaintiff, as was revealed from the demarcation report dated 28.1.1996 and also raised construction over the same. The remaining portion of the plot still remained in the possession of the plaintiff and defendants No.3 to 5. Although the plaintiff had been requesting Hukam Singh and Man Singh-defendants to remove the construction from the disputed portion and to hand over its possession, yet this was of no avail. The suit was opposed by Hukam Singh and Man Singh- defendants on the ground that the suit property was neither owned nor possessed by the plaintiff and the building in question was constructed by them in the presence of the plaintiff in the year 1984. The plaintiff never objected to the raising of the construction and he was, therefore, estopped by his own act and conduct from claiming possession of the property. Ever since the construction of the building in the year 1984, they were residing in the said building peacefully. The demarcation report, as claimed by the plaintiff, was wrong, fictitious and prepared in collusion with the plaintiff and, therefore, the two defendants were not bound by the same. After hearing learned counsel for the parties and perusing the entire material on record, the learned trial Court held that the plaintiff alongwith Mange Ram, Rajender and Chander-defendants was owner in possession of the suit property bearing khasra No. 468 and that Hukam Singh and Man Singh-defendants had illegally occupied the portion marked R.S.A. No. 3042 of 2008 -3- by letters ABEF and shown in red colour in the site plan and consequently the plaintiff and the three proforma defendants were held entitled to possession of the disputed portion shown by letters ABEF in the site plan. The findings recorded by the learned trial Court were upheld in the first appeal. Upon notice, respondents No.1 and 3 have put in appearance through their counsel. The remaining respondents have not been served so far. However, as the suit was filed by Mahender Singh alone, who is respondent No.1 in the present appeal and he stands served and represented, the service and presence of respondents No.2 and 4 to 10 is dispensed with. As per jamabandi Ex.P2 relating to the year 1990-91, plot No.468 was owned by the plaintiff, Mange Ram, Rajender and Smt. Chander, who were the children of Devi Singh. Their ownership over the suit property was, therefore, established. Even Hukam Singh-defendant did not dispute the fact that plot No.468 was owned by the plaintiff and the proforma defendants. The dispute between the parties pertained to portion shown by letters ABEF in the site plan Ex.P1. As per demarcation report Ex.PW5/A prepared by PW5 Raghubir Singh, Field Kanungo, after demarcation of plot No.468, it was found that Hukam Singh son of Balwant Singh had encroached upon 83 sq. yards, which had been shown in the site plan in red colour. Though according to the instructions of the Financial Commissioner, the demarcation was required to be conducted from three directions, yet on account of inhabitation on the western and southern side R.S.A. No. 3042 of 2008 -4- of the suit property, the demarcation could be made only from two directions. On the other hand, contesting defendants failed to rebut the report Ex.PW5/A by failing to lead any cogent evidence on the file. Accordingly, it stood proved that Hukam Singh and Man Singh-defendants had encroached upon the suit property belonging to the plaintiff and proforma defendants and shown by letters ABEF in the site plan Ex.P1. Though contesting defendants had claimed that they had raised construction over the suit property in the presence of the plaintiff and others, yet no concrete evidence has been led on record to establish the said fact. The concurrent findings arrived at by the learned Courts below are based on proper appreciation of material evidence led by the parties. These findings do not suffer from any illegality or infirmity. They are not liable to be upset and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. No substantial question of law, much less any substantial question of law, as claimed by the appellants, arises for determination. The appeal is, accordingly, dismissed. ( T.P.S. MANN ) September 07, 2009 JUDGE ajay-1