R.S.A. No. 1891 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1891 of 1985 Date of decision:- 08.12.2011 Ram Sarup and others ...Appellants Versus Gurbax Singh ...Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- None for the appellants. Mr. Tribhuwan Singla, Advocate with Mr. Rahul, Advocate for the respondent. RITU BAHRI J.(Oral) Challenge in this regular second appeal is to the judgment and decree dated 27.2.1985 passed by the Additional District Judge, Barnala whereby appeal against the judgment and decree dated 03.4.1982 passed by the Sub Judge 1st Class, Barnala has been dismissed. Plaintiffs had filed a suit for possession of land measuring 0 Kanal 19 Marlas on the ground that they are owners of land bearing Khasra No.540//426 10 Kanal 4 Marlas and the defendant is owner of Khasra No.425 adjoins this khasra number. The defendant in June 1979 had encroached upon the land 19 Marlas out of khasra No.540/426. The plaintiffs had approached R.S.A. No. 1891 of 1985 -2- the Tehsildar and on 19.4.1980 the Field Kanugo alongwith alongwith Patwari inspected the spot and gave a demarcation report (Ex.P1) that defendant had encroached 19 Marlas of land out of Khasra No.426. In this background the plaintiffs filed the present suit. On notice, defendant filed written statement and contested the suit on the ground of maintainability and also on the ground that they had become owners by way of adverse possession. The defendant did not make any encroachment on Khasra No.426. Jang Singh had purchased the Khasra No.425 in the year 1964 and from Jang Singh the answering defendant had purchased the land vide sale deed dated 29.1.1980. From the pleadings of the parties, following issues were framed on 24.3.1981 :- “1. Whether the plaintiffs are owners of 10 Kanals 4 Marlas of land as alleged in para No.1 of the plaint? OPP 2. Whether the defendant has illegally encroached upon the suit land and the plaintiffs are entitled to its possession? OPP 3. Whether the suit is within time? OPP 4. Whether the defendant has become owner by adverse possession? OPD 5. Whether the defendant has made improvements on the suit property worth Rs.5,000/-, if so its effect? OPD 6. Whether the plaintiffs are estopped to file the present suit by their act and admission? OPD 7. Relief.” R.S.A. No. 1891 of 1985 -3- The plaintiffs were held to be owners of 10 Kanals and 4 Marlas of land as per the jamabandi (Ex.P3) for the year 1978- 79 which shows that Ram Saroop, Dewan Chand and Badri Dass were owners in equal shares. The trial Court after going through the entire evidence had come to the conclusion that the Field Kanugo had inspected the spot and given a demarcation report on 19.4.1980 but no notice was served upon the defendant to appear at the time of demarcation. The plaintiffs have led no evidence to prove that any notice was given to the defendant. The information was sent to Gurbax Singh through Ramesh Pal. He was not summoned by the plaintiffs to give evidence. As per evidence given by PW1-Nabkamal he was to submit his report on or before 23.1.1980 and also stated that in the summoned file no notice regarding information to defendant has been mentioned. He stated that there was one water-course running between Khasra Nos.426 and 425. The area under the water-course was not measured by him. After going through this report, the trial Court had returned the findings that no notice was given to the defendant. The land in the water-course had not been measured to calculate the area under Khasra No.426, which comes to less than 10 Kanal 4 Marlas. There is a water-course between two Khasra Nos.426 and 425. The fact that there is a water-course has been admitted by Chamkaur Singh Patwari when he appeared as DW8. Without the measurement of the water-course the report of the Field Kanugo had not been accepted. The findings R.S.A. No. 1891 of 1985 -4- on issue Nos.3,4 and 5 were against the defendant. The suit of the plaintiffs was dismissed. On appeal, the findings recorded by the trial Court have been affirmed. The Appellate Court has held that the fact that the water-course was fallen between two khasra numbers stand proved from the evidence of DW6-Roop Chand and DW8- Chamkaur Singh. This fact has also been admitted by Nabkamal, Field Kanugo while appearing as PW1. Since the area of water- course was not measured by Nabkamal the finding recorded by the trial Court that there was no encroachment, has been affirmed by the Appellate Court. The report of the Kanugo was prepared without notice to the defendant. The appeal was dismissed on this ground. After going through the facts of the present case, it transpires that there is no question of law much less substantial question of law arises for consideration by this Court. The Regular Second Appeal is dismissed. December 08, 2011 ( RITU BAHRI ) Vijay Asija JUDGE