R.S.A. No. 1168 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1168 of 2009 (O&M) Date of Decision : 18.3.2009 Union of India & others .......... Appellants Versus Kiranpal Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Ms. Renu Bala Sharma, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 5.12.2006 and 13.3.2008 passed by the learned Courts below vide which suit filed by the plaintiff/ respondents for mandatory injunction to remove the encroachment of the security fencing over the land in dispute which belongs to the plaintiffs has been decreed. The plaintiffs filed a suit on the basis of demarcation carried out, wherein it was found that the defendant / appellants had encroached upon 2 kanal 17 marlas of land belonging to the plaintiffs by raising security fencing. In defence the plea was taken that the security fencing is there for the last 30 years and thereby defendants have perfected their title by way of adverse possession. R.S.A. No. 1168 of 2009 2 The learned Courts held that it is not open to the defendants to raise the plea of adverse possession to deny the property right to the citizen and decreed the suit. The stand of the learned counsel for the appellants that the suit for mandatory injunction was not competent was rejected by holding that as the plaintiffs were seeking removal of security fencing, therefore the suit framed was competent. The learned counsel for the appellants contends that the learned Courts below were in error in not dismissing the suit even though it was proved on record that possession was open and hostile to the plaintiffs and was in existence for more than 30 years. The learned counsel for the appellants contends that appeal raises the following substantial question of law for consideration by this Court :- “Whether the learned Courts below could have rejected the plea of adverse possession in view of the positive evidence on record ?” The learned Courts below have held that it is not open to the Government to raise a plea of adverse possession, and thus the substantial question of law framed does not arise. This appeal has been filed along with an application under Section 5 of the Limitation Act for condoning the delay of 268 days in filing the appeal. Though an attempt has been made to explain the delay on the ground that the delay has occurred due to the administrative difficulties faced by the R.S.A. No. 1168 of 2009 3 department in taking a decision to file appeal, however, the reading of the application along with affidavit show that at number of levels there is inordinate delay in taking the decision to move the appeal and thus does not disclose any cause for condoning the delay of 268 days in filing the appeal. The appeal is, thus, dismissed on merit as well as on the ground of limitation. 18.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE