R.S.A.No.3428 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3428 of 2009 Date of Decision : 24.09.2009 Rohtash ...Appellant Versus Mandroop and another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Sunil Panwar, Advocate, for the appellant. HEMANT GUPTA, J. (ORAL) Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for possession of 4 marlas of land allegedly in unauthorized possession of the defendants, was decreed. The plaintiff filed suit for possession of 4 Marlas of land allegedly encroached upon by defendant No.1-the present appellant, and 5 Marlas of land encroached upon by defendant No.2. To prove the encroachment, the plaintiff relied upon demarcation report Ex.PW-3/E carried out in pursuance of order of demarcation passed by the Revenue Authorities. The land was demarcated on 23.7.2000. On the basis of said report, it was found that defendant No.1 has encroached upon 4 Marlas of land in Killa No.15/3 (7-10). The said decree was affirmed in appeal as well. Learned counsel for the appellant has vehemently argued that PW-3 Vasudev, Halqa Girdawar, has not demarcated the land of Killa R.S.A.No.3428 of 2009 2 No.15/3 i.e. the subject matter of the land in dispute, but has demarcated other killa numbers and thus, the finding recorded that the appellant is in unauthorized possession is not tenable. It is also contended that Vasudev has conducted demarcation prior to filing of the suit and therefore, such demarcation could not be made basis for granting decree for possession against the appellant. It is also argued that the plaintiff has claimed vacant possession of Killa No.13/1, whereas the decree has been passed in respect of Killa No.15/3. Therefore, the judgment and decree passed by the Courts below is not sustainable. No doubt, PW-3 Vasudev has carried out demarcation prior to the filing of the suit, but he has been examined as a witness. He has proved his report Ex.PW-3/E. It has been found that said report has been carried out after fixing 3 pucca points in terms of the instructions issued by the Financial Commissioner. Once the Halqa Girdawar has carried out demarcation in accordance with the rules of Financial Commissioner and has appeared as a witness to prove his report, the fact that he was not appointed as a Local Commissioner by the Court is immaterial. The process of demarcation could be proved by any witness. Halqa Girdawar was a competent witness in respect of the demarcation and thus, his report Ex.PW-3/E cannot be assailed for the reason that he has carried out demarcation prior to the filing of the suit. It is wholly material if the appellant was not associated in the process of demarcation, as the process of demarcation was carried out by fixing 3 pucca points. It was open to the defendant to produce any witness to rebut the report of the demarcation produced by the plaintiff. Having failed to do so, mere fact that the demarcation process was carried R.S.A.No.3428 of 2009 3 out prior to the filing of the suit and without associating the appellant is wholly immaterial. The argument that the decree has been granted in respect of different killa number then the killa number of which possession was claimed by the plaintiff, is again inconsequential. The fact remains that the plaintiff has claimed that the defendant is in illegal possession of 4 marlas of land. The report found the appellant to be in illegal possession of the said land. Therefore, mere mentioning of a wrong killa number will not defeat the claim of the plaintiff to claim possession over a land, which is proved to be in unauthorized possession of the defendant. Learned counsel for the appellant then argued that the appellant is a co-sharer and without partition of the joint land, it could not be said that the appellant is in unauthorized possession or that the plaintiff is entitled to specific killa number. The said argument has no factual basis. It is not the stand of the defendant in the written statement that he is co- sharer and that the land has not been partitioned. In the absence of any plea raised in the written statement, the defendant-appellant cannot be permitted to make out a new argument in the second appeal. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 24.09.2009 (HEMANT GUPTA) Vimal JUDGE