RSA NO. 3494 OF 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO. 3494 OF 1985 Date of Decision:29.4.2011 Shri Lakha Ram and others …. Appellants Versus Shri Salwinder Singh and others ….. Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.S.S.Sodhi, Advocate, for the appellants Mr.P.S.Bath, Advocate, for the respondents. -.- JITENDRA CHAUHAN, J. The present appeal is directed against the judgment and decree dated 29.7.1985 passed by the learned District Judge, Gurdaspur allowing the appeal of the plaintiffs against the judgment and decree dated 4.9.1984 passed by the learned Senior Sub Judge, Gurdaspur dismissing the suit of the plaintiffs. Brief facts of the present case are that Inder Mohan was the owner of the land measuring 14 marlas comprised in Khasra No.378/3 situated in Village Kaler Kalan. He sold the property to the plaintiffs vide sale-deed dated 14.1.83. It was also case of the plaintiffs/respondent that that defendant No.1/appellant is the owner of land measuring 19 marlas comprised in Khasra No.378/2 situated in the same village. The defendant Nos. 2 and 3 are the sons of defendant No.1 and all the three of them have no right; title or interest in the suit land. However, the defendants/appellant encroached upon the suit land and included the same in their plot. The defendants/appellants contested the suit on the ground that RSA NO. 3494 OF 1985 2 the defendant No.1/appellant is the exclusive owner of Khasra No.378 (Min Darmyan), which he purchased from the previous owner Moti Ram on 2.12.1964. However, the brother of the plaintiff No.1/respondent Harbhajan Singh raised a dispute with regard to the passage leading to the house of the defendants. But on 27.7.81, he recognised the right of the defendants to the passage by means of a writing made on the back of the sale-deed dated 2.12.1964. After framing of the issues and allowing the parties to lead evidence, the trial Court vide judgment and decree dated 2.9.1983 dismissed the suit of the plaintiffs by holding that the defendant No.1 has become owner of the encroached area measuring 7 marlas out of Khasra No. 378/3 by adverse possession. Feeling aggrieved against the judgment and decree of the learned trial Court, the plaintiffs preferred an appeal, which was allowed by holding that the there is no cogent or reliable evidence to prove that the defendants are in adverse possession of the land in dispute. Hence, the present appeal. Learned counsel for the appellants has submitted that from the statements of Lakha Ram, DW1 and Gian Singh, DW-2, it is evident that the defendant No.1 purchased the land bearing Khasra No.378/2 on 2.12.1964. He also refers to the report of Local Commissioner, Exhibit P3, which establishes the fact that defendant No.1 raised the compound wall around 1K-6M i.e. 19 marlas bearing khasra No.378/2 and 7 marlas out of khasra No. 378/3 adjoining khasra No.378/2 and built a house thereon 15/16 years ago. He has also submitted that the plaintiff/respondent did not raise any objection to the report of the Local Commissioner and the said report has RSA NO. 3494 OF 1985 3 been become final. Thus, it is established that the defendant/appellants are in adverse possession of land measuring 1K-6M i.e. 19 M bearing Khasra No. 378/2 and 7 marlas out of khasra No. 378/3 for the last 15/16 years. It has also been submitted that the plaintiffs or their witness did not state that the possession of the land purchased by the plaintiff was delivered to them. On the other hand, learned counsel for the plaintiffs/respondents submitted that as per the statements of Lakha ram, DW1 and Gian Singh, DW2, it is made out that the defendant No.1/appellant was in possession of the land measuring 19 marlas comprised in Khasra No.378/2, which he purchased from the previous owner Moti Ram and no excess area was in possession of the defendants. Therefore, he has argued that there is no proof that the defendants are in adverse possession of the land in dispute. I have heard the learned counsel for the parties and perused the record with their able assistance. To ascertain the extent of encroachment, the Local Commissioner visited the spot and carried out measurements in the presence of parties. He submitted his report, Exhibit P3 to the effect that an area measuring 7 marlas out of khasra No. 378/3 was in possession of the defendants. In this regard, I agree with the findings recorded by the learned first appellate Court that the Local Commissioner was appointed by the Court to make only measurements of the land in dispute to find out whether the defendants had encroached upon any part of the land in dispute or not. However, the Local Commissioner exceeded his role beyond assigned to him i.e. the determining the age of the boundary wall over the encroached area. RSA NO. 3494 OF 1985 4 There is no cogent or reliable oral or documentary evidence, which suggests that the appellants are in adverse possession of the land in dispute. To prove its case, the plaintiff-respondent herein has brought on record jamabandi for the year 1976-77, Ex. P.2, which shows Inder Mohan Singh to be owner in possession of Khasra No. 378//3(0-14). However, the claim of defendant/appellants of adverse possession does not inspire any confidence. The plaintiffs are claiming possession on the basis of title-deed, Ex. P.1 dated 14.1.1983. This suit was filed on 21.2.1983. It has also come on record that the defendants never claimed or asserted title over the land in excess of the land allegedly purchased from Moti Ram. The report, Ex. P3, of local commissioner is binding on the parties and Lakha Ram, Ajit Lal and Prita, defendants, have no right, title or interest to retain the possession of any portion of Khasra No. 378//3 (0-14). Thus, the plea of adverse possession is not proved. In view of the findings recorded by learned first appellate court after elaborate consideration on the factual aspects, in my opinion, no substantive question of law arises warranting interference with the impugned judgment and decree. In the present case the lower appellate court fairly appreciated the evidence and rightly reversed the findings of the trial Court. Accordingly, the present appeal is dismissed. The judgment and decree of the learned first appellate Court are maintained. 29.4.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No RSA NO. 3494 OF 1985 5