RSA No.713 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.713 of 2010 Date of Decision: 07.05.2010. Gurdeep Kaur and others .……Appellants Versus Baldev Singh and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. S. S. Virk, Advocate for the appellants. L. N. MITTAL, J (ORAL) This is second appeal by legal representatives of plaintiff- Harbans Kaur since deceased, having remained partly unsuccessful in both the Courts below. Plaintiff Harbans Kaur filed suit against Sarup Singh (defendant No.1/proforma-respondent No.2 herein) and Baldev Singh (defendant No.2/respondent No.1 herein) for possession of 1 kanal 7 marlas land in suit alleging that the defendant had illegally encroached upon the said land belonging to the plaintiff. The plaintiff being owner thereof claimed possession of the suit land from the defendants. Defendants in their written statement controverted the plaint allegations. The defendants pleaded that they are not in possession of any part of the suit land belonging to the plaintiff. It was also, however, pointed out that according to some earlier demarcation report, the defendants had allegedly encroached upon 3 marlas land only of the plaintiff whereas now the plaintiff claimed RSA No.713 of 2010 -2- encroachment by defendants over 1 kanal 7 marlas land. The defendants, however, asserted that they are not in possession of any part of the suit land belonging to the plaintiff. Various other pleas were also raised. Subsequently, suit against defendant No.1 Sarup Singh was dismissed as withdrawn. Learned Trial Court initially dismissed the suit vide judgment dated 13.09.2007. However in appeal, vide judgment dated 04.04.2008 passed by learned Additional District Judge, Bathinda, the suit was remanded to trial Court with direction to appoint Revenue Officer of the rank of Naib Tehsildar or above to demarcate the suit land in the presence of the parties in accordance with High Court Rules and Orders. Accordingly Tehsildar was appointed as Local Commissioner by the Trial Court for effecting demarcation. Tehsildar made demarcation report according to which defendant No.2 was found in possession of 1 ½ marlas land of the plaintiff. Accordingly, learned Civil Judge (Junior Division), Talwandi Sabo vide impugned judgment and decree dated 10.10.2008 partly decreed the plaintiff's suit for possession of 1 ½ marlas of land against defendant No.2. Against said judgment and decree of the trial Court, legal representatives of plaintiff preferred first appeal and defendant No.2 Baldev Singh also preferred first appeal. Both the said appeals have been dismissed by learned Additional District Judge, Fast Track Court, Bathinda vide common judgment dated 13.10.2009. Feeling aggrieved, legal representatives of the plaintiff have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. RSA No.713 of 2010 -3- Learned counsel for the appellants vehemently contended that according to demarcation report obtained by the plaintiff before filing of the suit, defendants were found in possession of 1 kanal 7 marlas land in suit belonging to the plaintiff and, therefore, the plaintiff's suit should have been decreed in toto. The contention cannot be accepted . The demarcation report referred to by learned counsel for the appellants was obtained by the plaintiff from Revenue Officer behind the back of the defendants and the said report was rightly discarded . On the other hand, when initially the plaintiff's suit was dismissed vide order dated 13.09.2007 of the trial Court, in appeal preferred by the plaintiff, the suit was remanded by the appellate Court to the trial Court with direction to appoint Revenue Officer for demarcation of the land. The said remand order has attained finality and was not challenged. Accordingly, demarcation report submitted by the Tehsildar appointed as Local Commissioner pursuant to remand order has to be accepted. The earlier report obtained by the plaintiff before filing of the suit even otherwise cannot be accepted as the same was obtained behind the back of the defendants. The said report was also not found to be in accordance with High Court Rules and Orders. On the contrary, demarcation report submitted by Tehsildar has been found to be in accordance with High Court Rules and Orders. Both parties preferred objections against the said demarcation report, but the said objections have been dismissed by the trial Court because the Local Commissioner was not examined as witness by either party. There is no infirmity in the demarcation report of Tehsildar depicting that defendant No.2 had encroached upon 1 ½ marlas land RSA No.713 of 2010 -4- only belonging to the plaintiff. The suit has, therefore, been rightly decreed partly for possession of the said land. There is concurrent finding by both the Courts below that defendant No.2 was found to have encroached upon 1 ½ marlas land only out of suit land belonging to the plaintiff. The said finding is based on proper appreciation of evidence and does not suffer from any illegality or perversity so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus found to be without any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 07.05.2010. A. Kaundal