R.S.A. No. 904 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 904 of 2009 (O&M) Date of Decision : 17.3.2009 Gram Panchayat Seeman ....Appellant Versus Ajmer Singh & others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.S.P.Chahar, Advocate for the appellant. ..... MAHESH GROVER, J. This is a defendant's second appeal against the judgments of the learned trial Court dated 13.1.2006 and the first Appellate Court dated 30.9.2008. Plaintiff Jai Parkash, father of respondents No.1 to 3, 5 and 6 and husband of respondent No.4, filed a suit for permanent injunction against the appellant alleging that he was in peaceful possession of the disputed area and was using the same for tethering cattle and for preparation of cow dung cakes, etc. It is alleged that the Sarpanch of the Gram Panchayat along with some other relations were threatening to interfere in his peaceful possession. The appellant disputed the factum of possession and alleged that encroachment has been made on the property of the Gram R.S.A. No. 904 of 2009 (O&M) -2- Panchayat. It was pleaded that encroachment has been made on the land which is situated in abadi deh and is being used by the general public as street and shamlat chowk. The following issues were framed during the course of trial :- 1. Whether plaintiff is entitled to a decree for permanent injunction regarding suit property detailed and described in para no.1 and 2 of the plaint being its owner in possession as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Relief. Both the Courts below concluded on the basis of the report of the Local Commissioner that there was no encroachment made by the plaintiff/respondents as alleged by the appellant. The suit was accordingly decreed by determining the factum of possession in favour of the respondents. Aggrieved by the aforesaid findings, the appellant is in second appeal. It has been contended that the findings recorded by the Courts below are perverse as the same are based on the report of one Local Commissioner in preference to the other. It is further contended that while discarding the report of the first Local Commissioner, erroneous reason has been resorted to. I have heard the learned counsel for the appellant and have gone through the records. A pure finding of fact has been determined by the Courts R.S.A. No. 904 of 2009 (O&M) -3- below regarding possession of the plaintiff/respondents on the disputed area. This finding was based on the report of the Local Commissioner, a revenue official, who had determined the factum of possession as also the fact that there was no encroachment to belie the case of the appellant. No objections have been preferred by the appellant against the report of the Local Commissioner which has been made the basis of the finding with which the appellant is aggrieved. In this view of the matter, when the appellant himself has no objection to the findings of the Local Commissioner, the reliance which has been placed on such a report by the Courts below to arrive at a conclusion cannot be termed to be perverse unless it is shown that the report itself was suffering from some malady. The apex court in Govindaraju v. Mariamman 2005(2) S.C.C. 500 has held that the findings which are not perverse should not be interfered with in the regular second appeal. In the considered opinion of the Court, for the reasons which have been stated above, the finding of fact determined by the Courts below cannot be termed to be perverse so as to warrant an interference in the regular second appeal. The substantial question of law which has been sought to be projected before this Court “that the findings recorded by the Courts below are perverse” is therefore answered as above against the appellant. That apart the appeal is also barred by a delay of 11 days. Dismissed. 17.3.2009 (MAHESH GROVER) JUDGE dss