RSA 3582 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. RSA 3582 of 2010 (O&M) Decided on 08.9.2010. Dharampal --Appellant vs. Gram Panchayat and another -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Bijender Dhankar,Advocate, for the appellant Rakesh Kumar Jain, J, The defendant is in second appeal against judgment and decree of learned first Appellate Court dated 29.7.2010 by which judgment and decree of the trial Court has been reversed. The plaintiff has filed the suit for mandatory injunction alleging that he used to be the owner of a plot comprised in khasra No.315 total measuring 0 kanal-17 marlas, situated in the revenue estate of village Bari, Tehsil Ganaur, District Sonepat. There is a street/rasta adjacent to the northern side of the plot of the plaintiff bearing khasra No. 310/1 having width of 11 feet. The plaintiff was using his plot as 'Gitwar' and when he intended to construct his residential house on it, he got it demarcated and came to know that the Gram Panchayat had earlier, forcibly and illegally carved out a gali in the northern side of the plot of the plaintiff. He also came to know that the Gram Panchayat had encroached upon the plot of the plaintiff to the extent of 6-1/2 feet in width. The plaintiff requested the RSA 3582 of 2010 (O&M) 2 Gram Panchayat to remove the encroachment and since his request was not accepted, he had to file the suit. The defendants filed their written statement separately. In the written statement filed by defendant No.1, it was alleged that the plaintiff has given incorrect boundaries and thus encroachment was denied. Defendant No.2 challenged the demarcation report and averred that khasra No.310/1 is lying vacant at the spot. It was asserted that defendant No.2. did not close the gate as it is opening in the street and not in any part of the plot of the plaintiff. The plaintiff filed replication to the written statements in which averments made in the plaint were reiterated and that of the written statement were denied. On the pleadings of the parties, issues were framed. After obtaining evidence, the trial Court decreed the suit of the plaintiff and directed defendant No.1. to remove encroachment from the land up to the extent of 6 ½ feet towards the northern side of the portion of the plot of the plaintiff and also to remove the street from the plot of the plaintiff and further to restore the gali to its original shape within three months from the date of passing of the order. Defendant No.2. was also restrained from constructing pucca RCC gali on the plot of the plaintiff. The judgment and decree of the trial Court was challenged in appeal in which it was alleged that suit of the plaintiff be dismissed . While allowing the appeal, learned first Appellate Court observed as undet:- 11. “After going through the pleadings and appreciating the arguments advanced by both the counsel, one thing is very much clear that RSA 3582 of 2010 (O&M) 3 the whole controversy is about plot No. 315 and street bearing No. 310/1. The plaintiff/respondent claimed that 6 ½ feet land of his plot as mentioned in demarcation report Ex.P-4 was taken by gram Panchayat while constructing the street under the garb of plot No.310/1. First of all, the plaintiff/respondent failed to plead and prove when alleged encroachment was made and when he was dispossessed. The entire plaint is silent in this regard. The plaintiff/respondent claimed that since oral partition between his brothers, he is in exclusive possession of plot No.315. It is not pleaded by him as to whether the land under street was encroached before his becoming exclusive owner-in-possession or after that. Appellant/defendant No.2. when stepped into witness box as DW-1, deposed that street in question was brick paved by Gram Panchayat in 1981 and on both sides of the street are house and plot. No cross-examination was conducted on DW-1 Jai Parkash on this point meaning thereby the plaintiff admitted the construction of street in 1981. In Malkiat Singh Vs. Kashmiri Lal 2000 (1) Civil and RSA 3582 of 2010 (O&M) 4 Rent Judicial Report 671, it was held that when there was no cross-examination of the witness on a particular point of his examination-in-chief, it showed that other party accepted that part. The plaintiff/respondent filed the suit in the year 2005. After 24 years, the plaintiff/respondent started claiming the land under street to be a part of plot No.315. If there is any encroachment then also the appellant/defendant No.2. has been seeing without any objection. Further he did not object at the time when Gram Panchayat constructed the street pucca. 12. It was the plaintiff/respondent to prove encroachment. As per Aks Shijra Ex.P1 relied upon by the plaintiff/respondent the northern side of plot No.315 is 11 karam, southern side 12 karam, western side 13 karam and eastern side 13 karam and towards northern side of plot No,315 street No. 310/1 is in existence and as per site plan prepared with demarcation report Ex.P-4 southern side is 8 karam, northern side is 11 karam, eastern side 10 karam and western side is 12 karam. Further no encroachment has been shown RSA 3582 of 2010 (O&M) 5 from eastern side. The site plan prepared by Naib Tehsildar does not seem to be correct one because the southern side is wrongly shown as 8 karam and eastern side is 10 karam. Further, in the report Ex.P-4, it is mentioned that point of southern side of street in existence was found correct. The plot No. 315 is towards south side of street. It means there is no encroachment towards northern side i.e.( towards street) of the land of plot No.315. In the site plan with the demarcation report Ex.P-4, no encroachment was depicted by Dharampal, Naib Tehsildar, no area of street No.310/1 was shown. Even in Ex.P-4, Naib Tehsildar did not mention which numbers were to be demarcated by him. Though the report Ex.P-4, reveals that Local Commissioner fixed the points before carrying one demarcation but his report as to encroachment if any is vague and cannot be relied upon. 13. From the oral evidence of PW-1 Dharampal, PW-2 Attar Singh and PW-3 Sant Lal also the plaintiff/respondent failed to prove the encroachment and the year of encroachment, if any. Rather PW-1 Dharampal RSA 3582 of 2010 (O&M) 6 plaintiff/respondent admitted that defendant No.2./appellant affixed the gate about 20 years ago and the boundaries/dimensions told by him of his plot do not match with Ex.P-1. Thus, the findings given by the learned Court on issue No.1 deserves to be reversed”. In the present appeal, learned counsel for the appellant has submitted that the judgment and decree of the first Appellate Court is patently illegal. He has tried to formulate substantial question of law on the basis of misreading of evidence by the learned first Appellate Court. However, he could not give satisfactory reply as to why he filed the suit after the expiry of 24 years after the street having been constructed by the Gram Panchayat. He also could not answer satisfactorily about the demarcation of the plot which has been discussed by the learned first Appellate Court in para 12 of the judgment. Insofar as demarcation report is concerned, it is contrary to Aks-shizra and has rightly not been followed by the learned first Appellate Court. Learned counsel has also failed to point out any misreading of evidence available on record by the learned first Appellate Court. In view of my above discussion, I do not find any substantial question of law involved in the present appeal and as such, the same is hereby dismissed. No costs. 08.9.2010 (Rakesh Kumar Jain) RR Judge RSA 3582 of 2010 (O&M) 7