IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2226 of 2008 (O&M) Date of decision: 17th August, 2011 Sehjpal Cold Storage … Appellant Versus Gurmail Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Raj Mohan Singh, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been filed by defendant to the suit. The respondent-plaintiff filed a suit for possession of the area of northern portion of land bearing Khewat No.677, Khatoni No.808, Khasra No.45//16/3(6-18), 17/2(6-18), 24(7-18), 25(1-2), 46//20/2(6-18), 21(0-19), 52//1(4-5), 10/1(6-3), 8(7-0), 53//4(7-9), 5(3-7), 215//(18-18) shown red in the site plan attached with the plaint. He sought a further direction that the appellant-defendant should remove the wall and two iron gates fixed in the wall existing in the Khasra numbers mentioned in the head-note of the plaint, as respondent-plaintiff claimed himself to be the owner. A further prayer was made that permanent injunction be granted and appellant-defendant be restrained permanently from constructing the rice-sheller adjoining to the area of the land of plaintiff including the residence, as the same will cause health hazard, nuisance and would change direction of the wind. Regular Second Appeal No.2226 of 2008 (O&M) In the suit it was pleaded that the respondent-plaintiff is owner in possession of the land, details and description whereof have been given in para No.1 of the plaint. It was further stated that the respondent-plaintiff had carved out a private Rasta by fixing an iron gate as an approach to his house. The respondent-plaintiff stated that he was enjoying the fruits on the entire land and on some portion of the land on the northern side a pacca Rasta was made by the respondent-plaintiff from his own resources. About two years ago in the absence of respondent-plaintiff, appellant-defendant had constructed a wall in the suit land illegally and forcibly, and had encroached upon the land of the respondent-plaintiff. Furthermore, after constructing the wall, the appellant-defendant had opened the gates towards the land of the plaintiff. It was claimed in the suit that the defendant had no right to do so and the defendant was liable to vacate the portion of the land shown red in the site plan and as reflected in the jamabandi attached with the plaint. It was further stated that the defendant was liable to hand over possession of the land which is a stretch of about 7 feet wide inside the wall on its northern side shown red in the site plan, which is a part of the Khasra numbers in possession of the plaintiff. It was further stated that the defendant was threatening to construct a rice-sheller in his own land and in the land of the plaintiff for storage and throwing the rice-husk towards the land of the plaintiff, which will block the entire passage of the plaintiff as well as other inhabitants using the passage. Furthermore, the rice-husk from the rice-sheller will cause health hazard and pollute the air and environment in the vicinity where the plaintiff is having his residential house. It was further pleaded that the rice-husk from the rice- 2 Regular Second Appeal No.2226 of 2008 (O&M) sheller will cause irreparable loss to the health of the family members of the plaintiff. Furthermore, direction of the wind from north to south and from north-east to south-east will always bring the rice-husk in the area of land of the plaintiff as also to his residence, passage and the cattle shed. Upon notice, the appellant-defendant caused appearance and filed written statement. A preliminary objection was raised that the factum of earlier litigation has been suppressed. It was stated that there was another litigation pending with regard to the same subject matter between the parties. The defendant had already installed a cold storage approximately 20 years back and had raised construction including the southern wall of this storage while leaving one Karam for the ingress and egress and similarly the plaintiff had left one Karam from his land for the passage as there was no passage connecting to his property/house and thereafter, the Municipal Council, Nawanshahar had declared it to be a public street and had provided all amenities. The defendant further stated that he was well within his rights to install a sheller in his own property and there will be no blockage of the public street. Furthermore, it was stated that there are other rice-shellers in the area and house of the plaintiff is at a distant place. The respondent-plaintiff filed replication wherein he reiterated the contents of the plaint and denied that of the written statement. After conclusion of the pleadings, the trial Court formulated following issues: “1. Whether the plaintiff is owner of the property in dispute? OPP 3 Regular Second Appeal No.2226 of 2008 (O&M) 2. Whether the plaintiff is entitled to decree for possession? OPP 3. Whether the plaintiff is entitled to declaration and injunction, as prayed for? OPP 4. Whether the plaintiff is barred by his act and conduct from filing this suit? OPD 5. Whether the suit is time barred? OPD 6. Whether this suit is premature? OPD 7. Whether this suit is bad for non-joinder of necessary parties? OPD 8. Relief.” The respondent-plaintiff examined Sarjiwan Goel as PW-1, Malkiat Ram Field Kanungo as PW-2, Baldev Singh Saini Draftsman as PW-3 and himself appeared as PW-4. Whereas, the appellant- defendant himself stepped into the witness box as DW-1 and examined Jagmohan Singh as DW-2. The trial Court decided issues No.1 and 2 in favour of the plaintiff and against the defendant by holding that the plaintiff is owner of the property in dispute. It further held that the defendant had encroached upon 6 Marlas of land, as shown in the site plan Ex.PW2/2 prepared by Kanungo towards northern side and thus, the plaintiff was entitled to portion of the land measuring 6 Marlas shown yellow in the report of the Local Commissioner. Qua issue No.3, the Court held that declaration as prayed for cannot be granted in favour of the plaintiff as he has failed to prove that construction of the rice-sheller will cause nuisance, therefore, this issue was decided against the plaintiff and in favour of the defendant. Issues no.4 and 5 were decided against the defendant and in favour of the plaintiff. Issue No.6 was not pressed by the defendant and 4 Regular Second Appeal No.2226 of 2008 (O&M) therefore, the same was also decided in favour of the plaintiff. The trial Court further held that the suit is not bad for non-joinder of necessary parties and it decided issue No.7 against the defendant. Thus, the suit was partly decreed and it was held that the plaintiff is entitled to possession of the suit land, however, his prayer for permanent injunction was declined. Mr.Raj Mohan Singh, Advocate appearing on behalf of the appellant-defendant, has stated that the findings returned by the trial Court have been affirmed by the lower appellate Court. During the course of arguments, the only substantial question of law formulated for consideration of this Court is as to whether the demarcation and the site plan prepared by the Field Kanungo Malkiat Ram PW-2 are in consonance with the standing instructions issued by the Financial Commissioner, as no pacca points were fixed by the Kanungo (Local Commissioner appointed for carrying the demarcation). Counsel for the appellant has produced the testimony of Malkiat Ram Field Kanungo PW-2. In examination in-chief this witness stated that he had made measurement from the pukta mark in the presence of parties, whereas in cross-examination he stated that after verification of pacca points and considering the rectangles from the consolidation, he had demarcated the property from both the sides. He further stated that he had verified the correctness of pacca point mark ‘A’ in Ex.PW2/3 from south and northern side. To assail this part of the examination in-chief and cross-examination of Malkiat Ram Field 5 Regular Second Appeal No.2226 of 2008 (O&M) Kanungo PW-2, counsel for the appellant has pointed out the following portion of cross-examination of this witness: “There was no rectangle stone on northern and southern side of point A shown in exhibit PW-2/3. It was verified only of killa batt of different owners.” I fail to comprehend that from this part of the cross- examination how it can be inferred that the instructions of the Financial Commissioner were not adhered to by Malkiat Ram Field Kanungo PW-2. Furthermore, the part of evidence was totally in the realm of appreciation before both the courts below, who have examined the testimony of this witness and have returned a concurrent finding of fact that as per the demarcation defendant had encroached upon 6 Marlas of land belonging to the plaintiff. The view formulated by both the courts below is the one which is possible in the facts and circumstances of this case. Therefore, in regular second appeal this Court will not substitute its own opinion with the one formulated by the courts below. Counsel for the appellant has further stated that what the plaintiff claims to be a private passage is a public street and is being maintained by the Municipal Council. The trial Court has given a definite finding of fact that the property encroached upon by the defendant is not a part of the passage which is in existence at present. It held as under: “15. … … … The property encroached by the defendant is not the part of passage … … …” Thus, no ground to cause any interference is made out in the present regular second appeal, especially when during the course of arguments no question of law much less a substantial one has been 6 Regular Second Appeal No.2226 of 2008 (O&M) raised for consideration of this Court, and hence, the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE August 17, 2011 rps 7