RSA No.4904 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4904 of 2010 (O & M) Date of Decision: 05.01.2011. Sohan Lal and another .....Appellants Versus Sadhu Singh ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Padam Jain, Advocate for the appellants. L. N. MITTAL, J (ORAL) Defendants-Sohan Lal and Teja Singh are in second appeal, having remained unsuccessful in both the Courts below. Respondent-plaintiff-Sadhu Singh filed suit against appellants alleging that plaintiff is owner in possession of land of various khasra numbers including khasra No.4655/1 measuring 23 kanals 4 marlas out of which defendants have encroached upon 1 kanal 19 marlas land about 2 ½ years before filing of the suit. In Panchayat, matter was compromised on 24.03.2002 to the effect that the land would be got demarcated and encroachment if any found would be vacated. Pursuant thereto, both parties jointly moved application on 26.03.2002 to Tehsildar, Kapurthala to get the land demarcated. Thereupon Kanoongo demarcated the land vide report dated 16.06.2002 and found that defendants had encroached upon 1 kanal 19 marlas land of the plaintiff. However, the defendants failed to vacate the same, necessitating the filing of the instant suit for possession of the said land. RSA No.4904 of 2010 (O & M) -2- The defendants denied the plaint allegations. The defendants alleged that they have not encroached upon any land of the plaintiff. The alleged demarcation report is false. Demarcation has not been done properly. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Kapurthala vide judgment and decree dated 04.08.2009 decreed the plaintiff's suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Kapurthala vide judgment and decree dated 29.09.2010. Feeling aggrieved, defendants have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff has led ample evidence to prove that defendants have encroached upon the suit land belong to the plaintiff. It is not in dispute that plaintiff is owner of khasra No.4655/1 measuring 23 kanals 4 marlas. The central controversy to be adjudicated upon in the lis is whether defendants have encroached upon 1 kanal 19 marlas out of this land. To prove the same, the plaintiff examined Kanwaljit Singh, Naib Sadar Kanoogo as PW-1. He proved his demarcation report Ex.P-1 depicting that defendants have encroached upon 1 kanal 19 marlas land of the plaintiff. The said demarcation was made on the basis of joint application moved by plaintiff and defendant No.1 for demarcation. Defendant No.1 was also present at the time of demarcation and has even signed the demarcation report. It is thus manifest that demarcation was carried out on the joint request of plaintiff and defendant No.1 and in their presence and also in the presence of many other persons of the RSA No.4904 of 2010 (O & M) -3- village. However, in spite thereof, the defendants tried to depict that the demarcation had not been carried out at all. The fact remains that the demarcation was carried out and demarcation report has been duly proved by examining the witness, who made the demarcation. From the demarcation report, it is amply proved that defendants have encroached upon the suit land belonging to the plaintiff. The defendants did not seek appointment of any other Local Commissioner for demarcation of the suit land. There is also no cogent evidence led by the defendants to rebut the demarcation report proved by the plaintiff. Defendants alleged that pucca points were not fixed while making the demarcation and, therefore, the demarcation is vitiated. However, this plea of the defendants has been rightly discarded by the Courts below because Kanwaljit Singh, who made the demarcation specifically deposed that he had fixed pucca points before conducting the demarcation and he has even mentioned about the pucca points in the demarcation report. Even no suggestion was given to him that pucca points were not fixed by him before conducting the demarcation. On the other hand, it was suggested to him that signatures of defendant No.1 were obtained on blank paper and demarcation report was prepared by him later on. It was not the pleading of the defendants that signatures of defendant No.1 were obtained on blank paper. On the contrary, there were 25 to 30 persons present at that time and, therefore, the question of obtaining signatures of defendant No.1 on blank paper did not arise. Defendant No.1 in the witness box came with a new version that plaintiff had encroached upon the land of the defendants. However, RSA No.4904 of 2010 (O & M) -4- it was not even so pleaded in the written statement. Defendant No.1 in the witness box did not even deny that Kanwaljit Singh had conducted demarcation at the spot. Defendant No.1 admitted his signatures on the demarcation report. It is highly significant to notice that defendant No.1 stated that he got conducted demarcation 2-3 times and no encroachment was found to have been made by them. However, surprisingly, no such demarcation report has seen the light of the day. Obviously, therefore, very strong inference arises against the defendants. Sukhdev Singh DW-2 examined by the defendants has admitted that he was present at the time of demarcation. It would again depict that demarcation was in fact carried out at the spot and even defendant No.1 was present at that time. Sukhdev Singh stated that he has deposed at the instance of defendant No.1 that the demarcation was conducted wrongly. Thus testimony of Sukhdev Singh carries no probative value. Sukhdev Singh admitted that he had stepped into the witness box at the instance of defendant No.1 being neighbour of the defendants. Learned counsel for the appellants vehemently contended that defendant No.1 had instituted a suit for permanent injunction against the plaintiff and the said suit has been decreed vide judgment dated 28.09.2005 Annexure P-1. However, the said judgment has no bearing on the merits of the instant case because in that case, defendant No.1 sought injunction regarding his land of khasra No.4651 whereas in the instant case, plaintiff is seeking possession of his land being part of khasra No.4655/1. Thus the suit instituted by defendant No.1 (decided vide judgment Annexure P-1) pertained RSA No.4904 of 2010 (O & M) -5- to different land and not to the land involved in the present lis. Both the Courts below have appreciated the evidence and come to concurrent finding in favour of plaintiff-respondent. The said finding is supported by cogent reasons and is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. 05.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE