R.S.A. No. 1958 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1958 of 2009 (O&M) Date of decision: 11.05.2009 Mahi Pal and another ....appellants versus Rishikesh Sharma and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Shiv Kumar, Advocate, for the appellants. *** VINOD K. SHARMA, J. The defendant/appellants by way of this regular second appeal have challenged the judgment and decree dated 28.11.2008 passed by the learned lower appellate Court, decreeing the suit filed by the plaintiff/respondents. The plaintiff/respondents sought a decree for injunction to the effect that the defendant/appellants be restrained from interfering in the peaceful possession of the plaintiff/respondents over the suit land, and also from encroaching upon the suit land by raising construction. In the alternative, relief for possession was claimed. The plaintiff/respondents claimed that Hukam Chand (now R.S.A. No. 1958 of 2009 (O&M) -2- deceased) being represented by his legal heirs, was the owner in possession of the land bearing khasra N. 250 mearing 15 marlas and in khasra No. 251/1 to the extent of 6 marlas. The plaintiff No. 2 was claimed to be owner in possession of khasra No. 251/2 to the extent of 8 marlas whereas Kishan Chand defendant No. 3 was owner in possession of khasra No. 252/2 to the extent of 7 marlas. The defendant/appellants have their plots adjacent to the plaintiffs' plots towards west. It was claimed that the defendants, without any authority, have started digging foundation and collecting building material on the site to usurp the part of the land of the plaintiff/respondents, shown in red colour in the site plan attached with the plaint. The defendant/appellants controverted the pleadings raised in the plaint, and also took preliminary objection, that the suit filed by the plaintinff/respondents was not maintainable. The cause of action to file the suit was challenged, the plea of estoppel was also raised. The correctness of site plan was challenged. It was claimed that the defendant/appellants were owner in possession of the plot bearing No. 247 measuring 14 marlas on the extreme west-southern corner of the plot of the plaintiffs and the plots of other persons bearing Nos. 249 and 248 were also adjacent to the plot of the plaintiff/respondents. The objection was raised that the owners of plots No. 248 and 249 were not impleaded as party. Assertion that the defendant/appellants have encroached on the land was denied. The case set up was that as per the demarcation got done by the defendant/appellants, there was no encroachment. It was alleged that even in the demarcation carried out by the R.S.A. No. 1958 of 2009 (O&M) -3- plaintiff/respondents, no encroachment was found. On the pleadings and the evidence led, the learned trial Court dismissed the suit but the learned lower appellate Court held, that the plaintiff/respondents were owner in possession of the suit land, as detailed in the plaint and further that the defendants have encroached upon the land shown red in the site plan attached with the plaint. It was held that plaintiffs, therefore, were entitled to injunction prayed for. In order to reach this finding, reliance was placed on the report of the Local Commissioner holding, that the defendant/appellants have encroached upon 66 sq. yds. of land of the plaintiff/respondents. Mr. Shiv Kumar, the learned counsel appearing on behalf of the appellants, contends that the appeal raises the following substantial questions of law: - "1. Whether the learned lower appellate Court ignorned the admissible documentary evidence to hold the encroachment and, therefore, the decree passed is perverse? 2. Whether the suit was bad for non-joinder of necessary parties? 3. Whether great and manifest injustice has been done to the defendant/appellants?" In support of the substantial questions of law, the learned counsel for the appellants contended that the learned lower appellate Court failed to notice that the suit for injunction was not maintainable, as on the date of filing of the suit it was defendant/appellants who were in possession of the disputed land. The contention of the learned counsel for the appellants, therefore, is that the learned lower appellate Court has mis-read the R.S.A. No. 1958 of 2009 (O&M) -4- documentary and oral evidence in recording the finding that the defendant/appellants have encroached upon the land, after the filing of the suit. The findings, therefore, were claimed to be perverse. I find no force in the contention raised by the learned counsel for the appellants. The learned lower appellate Court, which is the final Court of fact, has recorded a positive finding holding therein that the defendant/appellants have encroached upon 66 sq. yds. of land belonging to the plaintiff/respondents. The finding is based on appreciation of evidence. It cannot be said that the findings recorded are outcome of mis-reading of documentary or oral evidence. The suit filed by the plaintiff/respondents was specific as in the alternative decree for possession was prayed for, and the learned lower appellate Court decreed the suit for possession. Therefore, it also cannot be said that the suit was not maintainable. The learned counsel for the appellants thereafter contended that the plot belonging to the defendant/appellants was adjoining the plot of the plaintiff/respondents as well as plots Nos. 248 and 249, however, owners thereof were not made party, therefore, the suit being bad for non-joinder of necessary parties could not be decreed. The judgment of the learned trial Court, therefore, cannot be faulted. The plea of the learned counsel for the appellants qua non- joinder of parties is also mis-conceived, as no issue in this regard was framed by the learned Courts below, nor any such point was considered and decided by the learned Courts below. Even otherwise, the suit could not be said to be bad for non-joinder of necessary parties, as it was proved that the defendant/appellants have encroached upon 66 sq. yds. R.S.A. No. 1958 of 2009 (O&M) -5- of land. The contention of the learned counsel for the appellants, that great and manifest injustice has been done to the defendant/appellants by relying upon the report of the Local Commissioner, which is vague and did not pin-point the exact encroachment, also cannot be accepted in the facts and circumstances of the case. A positive finding has been recorded in view of the evidence read with the report of the Local Commissioner that the defendant/appellants have encroached upon 66 sq. yds. of land. Therefore, it cannot be said that there has been mis- reading of report of the Local Commissioner nor the report is vague, as alleged. The learned counsel for the appellants thereafter contended that the judgment and decree cannot be sustained as objection to the report of the Local Commissioner was not adjudicated. This plea of the learned counsel for the appellant also cannot be accepted, as this Court in the case of K.C. Goyal and another Vs. Aggarwal Bidhya Parcharni Sabha and another, 1989(1) Revenue Law Reporter 101 has been pleased to lay down that the objections against the report of the Local Commissioner are not contemplated under the Code. The parties can examine the Local Commissioner only with the permission of the Court . However, no application was made for examining the Local Commissioner. Therefore, the learned lower appellate Court rightly held that the filing of objections was irrelavent. The reliance by the learned counsel for the appellants on the judgment of this Court in Balbir Dewan Vs. Naveen Chander, AIR 1989 Punjab and Haryana 257 is also mis-conceived, as in the said R.S.A. No. 1958 of 2009 (O&M) -6- judgment again, this Court has only held that additional issue cannot be framed regarding report of the Local Commissioner so as to enable the parties to lead evidence. It was merely observed that the Court may direct further inquiry in case Court was not satisfied. Once the Court is satisfied with the report, the defendant/appellants could not raise any grievance to the report of the Local Commissioner. In view of the pronouncement of the judgments by this Court, referred to above, no reliance can be placed on the judgment of the Hon'ble Delhi High Court in Harbhajan Singh Vs. Smt. Shakuntla Devi Sharma and another, AIR 1976 Delhi 175. Consequently, the substantial questions of law raised are answered against the appellants and the appeal is ordered to be dismissed in limine. (Vinod K. Sharma) Judge May 11, 2009 R.S.