Regular Second Appeal No. 3706 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 3706 of 2010 Date of Decision: 1.9.2011 Parbhati ... Appellant Versus Bala and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sudhanshu Makkar, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) The plaintiff, having failed in two rounds of litigation, has filed the present regular second appeal. A suit for ejectment was instituted by the plaintiff pleading therein that he is exclusive owner in possession over the land as mentioned in paragraph No.1 of the plaint, detail and description whereof was also given therein. It was averred that the defendants had no concern with that property of the plaintiff as it came into the notice of the plaintiff that the defendant had encroached upon his 11 marlas of land. It was specifically stated that this fact came into notice of the plaintiff when the land was got demarcated from Girdawar on 23.5.1999. Various efforts made by the plaintiff, to get the land vacated, proved futile. Hence, the suit was filed. Regular Second Appeal No. 3706 of 2010 2 Upon notice, the defendants had caused appearance and filed a written statement raising a plea therein that demarcation report dated 23.5.1999 is incorrect and does not depict true position of the spot. Furthermore, they are exclusive owners in possession over the property and they had raised construction of pucca house over the portion denoted as ABCD in the year 1984 as they had purchased the property from one Sugan Singh. A further plea was raised that the defendants are in peaceful enjoyment of the property without any objection or hindrance from the plaintiff. After completion of the pleadings, the trial Court had formulated the following issues: “1. Whether defendants have encroached upon the suit land of plaintiff as alleged and if so whether plaintiff is entitled for the relief of injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPP 3. Whether the suit is time barred? OPD 4. Whether the plaintiff is estopped from filing the suit due to his act and conduct? OPD 5. Whether the defendants have become owner by way of adverse possession? OPD 6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? Regular Second Appeal No. 3706 of 2010 3 OPD 7. Whether the plaintiff has no locus standi to file the present suit? OPD 8. Whether the defendants are entitled to special cost under Section 35A CPC? OPD 9. Relief.” The plaintiff himself appeared as PW.1 and had also examined Babu Lal as PW.2 and Krishan Kumar as PW.3. The defendants had also examined five witnesses. Defendant No.2- Mahender Kumar appeared as DW.1. The trial Court, after examining the evidence, gave following findings: a) That the defendants had purchased the property in question vide a registered sale deed in the year 1984 from one Sugan and since then they are in peaceful possession over the property. b) That the plaintiff has failed to prove that the defendants have encroached upon his property. For arriving at this finding, the trial Court held that evidence of the plaintiff as PW.1 was not trustworthy. c) The Court further held that demarcation report Ex.P1, submitted by the plaintiff, is not in consonance with the instructions issued by the Financial Commissioner Revenue. The Court has Regular Second Appeal No. 3706 of 2010 4 given credence to the demarcation report Ex.DW.3/A, proved by the defendants. The findings returned by the trial Court have been affirmed by the lower Appellate Court. Mr. Sudhanshu Makkar, Advocate, appearing for the appellant/plaintiff has raised following two pleas for consideration of this Court. Firstly, it is submitted that portion of the cross-examination of the plaintiff as PW.1 has been taken out of context, thus, his testimony aspires confidence. I am not able to subscribe to the argument raised by learned counsel for the appellant/plaintiff. This Court, in regular second appeal, cannot re-appreciate and do re-appraisal of the evidence. Both the courts below have held that the testimony of plaintiff-Parbhati Lal as PW.1 is not trustworthy. They have also taken into consideration the fact that the defendants had purchased the property in the year 1984 and as per the testimony of plaintiff as PW.1, he only became aware of the fact that the defendant had encroached upon 11 marlas of land when the demarcation was carried out in the year 1999. Mr. Makkar has raised another argument that once the defendants had raised an argument that they are having adverse possession over the suit property then they have admitted title of the plaintiff and thus, both the Courts below should have not questioned the averments made by the plaintiff that the plaintiff is actually an owner of the property. Learned counsel has further submitted that adverse possession of the defendants is not proved as even though they were in unhindered and peaceful possession of the property but their Regular Second Appeal No. 3706 of 2010 5 possession was not hostile to the plaintiff. This argument again is not tenable. The plaintiff, at first instance, has to stand on his own legs and cannot take benefits of the weaknesses of case of the defendants. It was incumbent upon the plaintiff to first prove that the defendants are encroachers. To prove this fact, the plaintiff has placed reliance upon two pieces of evidence, first his own testimony as PW.1 and second is demarcation report Ex.P1. As stated earlier, the testimony of the plaintiff/appellant as PW.1 has been discarded. Furthermore, the Court has given sanctity to demarcation report Ex.DW.3/A, submitted by the defendants over the demarcation report Ex.P1, brought on record by the plaintiff. Once two pieces of evidence on which the plaintiff has based his entire edifice has been rejected, there was nothing for both the Courts below to hold that the defendants are the encroachers. Therefore, the finding, given by both the Courts below that the defendants are not the encroachers, suffers from no infirmity. In these circumstances, even though an alternative plea of adverse possession has been taken that will not provide crutches to the the plaintiff who himself has failed to stand. Hence, there is no merit in the present appeal, which may warrant interference of this Court as learned counsel for the appellant/plaintiff has failed to persuade this Court that any substantial question of law arises for consideration of this Court. Hence, the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge September 1, 2011 “DK”