RSA No.200 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.200 of 2010 (O&M) Date of decision: 27.10.2010 Roshan and others ......Appellant(s) Versus Prahlad ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sachin Mittal, Advocate for the appellants. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for permanent injunction restraining the appellants from interfering into his peaceful possession over the suit land and further from raising any sort of construction forcibly and illegally, was decreed. Brief facts as averred in the plaint are that the respondent along with his brother was owner in possession of the suit land. It was further contended that the suit land was being used by them as Gadda Khaad (manure pit) since the time of their forefathers. The appellants being strong headed persons had threatened to interfere in their peaceful possession over the suit property. Hence, the necessity arose to file the present suit. The appellants contested the suit denying the aforesaid averments submitting that the suit land was acquired for construction of road which has been constructed. The appellants had constructed the pucca boundary wall adjoining to the road in their own land bearing Khasra No.69//20/1 and thus, the plaintiff-respondent was not in possession of the RSA No.200 of 2010 (O&M) 2 suit land and his suit deserved to be dismissed. Both the parties led evidence. After hearing learned counsel for the parties, the trial Court decided issue No.1 in favour of the plaintiff-respondent and issues No.2 to 5 against the appellants. Resultantly, the suit was decreed vide impugned judgment and decree dated 17.8.2007. Aggrieved from the aforesaid judgment and decree of the trial Court, the appellants preferred an appeal before the Lower Appellate Court. It may also be noticed that during the pendency of the appeal, with the consent of the parties Local Commissioner was appointed to demarcate the suit land of Killa No.20/6 in the presence of the parties with the assistance of Sadar Kanungo, Gurgaon to clarify whether the suit land had gone into the road or was lying vacant on the spot. In pursuance thereof the Local Commissioner submitted his report. In his report, the Local Commissioner opined that the land comprised in Khasra No.20/6 in the shape of Gadda Khad was lying vacant in between points AEDF after completing the area of Killa No.20/1 allegedly owned by the appellants. The Lower Appellate Court also found from the record that the father of the plaintiff-respondent was owner in possession of 1 marla of land comprised in Rect. No.69 Killa No.20/.6 and after him, the plaintiff along with his brothers became owner in possession thereof. Thus, on the basis of the report of the Local Commissioner, who was appointed by the Court, the Court reached to the conclusion that the stand taken by the appellants was false. Consequently, the findings of the trial Court were upheld by the Lower Appellate Court. Still not satisfied, the appellants have approached this Court by way of instant appeal submitting that the following substantial questions RSA No.200 of 2010 (O&M) 3 of law arise in this appeal: “(i) Whether the impugned judgments and decrees are the result of misreading of the evidence? (ii) Whether documents can be refused to be exhibited particularly when the same is available on record duly proved by the witness though inadvertently remains to be marked as a particular exhibit?” In support of his case, learned counsel for the appellants has vehemently argued that in spite of specific averments made by the appellants, no issue regarding the acquisition of land was framed and therefore, no evidence could be led in support of the averments made by the appellants in the written statement in this respect and therefore, it cannot be held against the appellants that they failed to prove their case as pleaded. It has been further argued by the learned counsel that the appellants had examined DW2 who had prepared the demarcation report dated 16.12.2006, Ex.DW1/B, in support of their case and argued that the said demarcation report was not considered by the Courts below which has resulted into perversity in the findings of the Courts below and therefore, the judgment and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellants and perused the impugned judgment and decrees. The Courts below on the basis of the evidence on record have recorded a concurrent finding of fact that the plaintiff along with his brother has succeeded to prove that they were owners and in actual possession of the suit land and therefore, they were entitled to the decree as prayed and on the other hand, the appellants have failed to prove the stand taken by them in their defence. The argument raised by the learned counsel for the appellants are without any merit as it was for them to claim an issue on the RSA No.200 of 2010 (O&M) 4 basis of their pleadings. At no stage, the appellants have made any attempt to claim another issue or reframing of the issues. Even the reliance placed by the appellants on the document Ex.DW1/B is misplaced as the said document is inadmissible evidence being a photostat copy. No other point was argued. Thus, I find no merit in this appeal. No substantial question of law, as raised, arises in this appeal. Dismissed. October 27, 2010 (RAKESH KUMAR GARG) ps JUDGE