IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1998 of 2006 Date of Decision : May 17, 2010 Ramesh alias Mahesh Kumar ....Appellant Versus The Collector, Yamuna Nagar and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Arun Jain, Senior Advocate with Mr. Anupam Sharma, Advocate for the appellant. Mr. P.S.Sullar, Deputy Advocate General, Haryana for the respondents. T.P.S. MANN, J. After remaining unsuccessful from both the Courts below in his suit for permanent injunction wherein he prayed for restraining the defendants from interfering in his actual and physical possession over the suit property situated within the revenue estate of Mauja Garhi Mundon, Jagadhri, District Yamuna Nagar, the plaintiff is now before this Court by way of second appeal. It was averred by the plaintiff in his suit that he had constructed the house and shop in the disputed property and the same adjoined the main road. The defendants had been removing encroachment in the city and threatening to demolish the construction in the disputed property on the plea that he had encroached upon PWD road. No part of his shop was on the PWD road or on the kacha berm of R.S.A. No. 1998 of 2006 -2- the said road. The defendants were adamant to demolish his construction. He had shown documentary proof to the defendants about his ownership of the property in question but due to political pressure, the defendants were threatening to demolish the shop. Defendants No.2 and 3 opposed the suit by filing joint written statement and taking preliminary objections about the suit being not maintainable, the plaintiff having no locus standi or cause of action to file the suit, the plaintiff having not come to the Court with clean hands and the suit being bad for want of notice under Section 80 CPC. On merits, it was stated that the house and the shop had been constructed by the plaintiff on the land belonging to the Government. The construction was raised in an unauthorized and illegal manner. There was a main road on the northern side of the disputed property. The plaintiff had encroached upon the Government land and, therefore, required to remove the said encroachment. Accordingly, it was prayed that the suit be dismissed. Upon completion of the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled to injunction as prayed for?OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD. R.S.A. No. 1998 of 2006 -3- 3. Whether the plaintiff has no locus standi to file the present suit?OPD. 4. Whether the plaintiff has no cause of action to file the present suit?OPD. 5. Whether the suit of the plaintiff is bad for want of notice u/s 80 CPC?OPD. 6. Relief. After hearing learned counsel for the parties and examining the evidence, the trial Court vide judgment dated 17.7.2003 held that the plaintiff had made encroachment upon the PWD road and, therefore, not entitled to any injunction. Accordingly, the suit was dismissed with costs and the defendants were given liberty to remove the encroachment made by the plaintiff in Khasra No.180 and the PWD road therein in due course of law. The findings arrived at by the trial Court were upheld by the lower appellate Court when it dismissed the first appeal filed by the plaintiff on 10.5.2006. I have heard learned counsel for the parties and perused the impugned judgments. On the basis of report Ex.D1 dated 9.2.1999 wherein it was stated that the area of Mahesh Dhaba run by the plaintiff comprised of atleast 20' wide strip of land which formed part of the main road, the suit filed by the plaintiff was earlier decreed by the trial Court on R.S.A. No. 1998 of 2006 -4- 6.3.2000. However, in appeal, the matter was remanded for fresh decision after appointing a Local Commissioner to demarcate the suit property and PWD road. Pursuant to order dated 4.1.2001 passed by Additional District Judge, Jagadhri while accepting the appeal of the defendants, the Tehsildar Jagadhri submitted his report Ex.PX on 27.11.2001 wherein it was mentioned that the property in dispute was part of Khasra No.159 and, therefore, it could not be a part of the land comprised in Khasra No.180. There is another demarcation report Ex.DW5/A prepared by the Naib Tehsildar, Jagadhri on 2.4.2003 to the effect that the dhaba of the plaintiff was situated within the area of Khasra No.159. However, the width of the road at the spot was 23 karams only against the actual width of 29 karams and as such there was encroachment on a strip of land measuring 6 karams in width at the spot. The area of Khasra Nos.9 and 159 were also demarcated and were found to be as per the record. In that regard there was aks-sajra Ex.DW5/C of the disputed area. As per the fard jamabandi Ex.P3 and khasra girdawari, the land comprised in Khasra No.159 was recorded as gair mumkin abadi. However, the plaintiff did not bring any evidence to show that he was owner in possession of the land comprised in Khasra No.159. He simply testified that he was owner in possession of the premises abutting PWD road comprised in Khasra No.159 but did not give the exact area under his possession. He also failed to establish that the R.S.A. No. 1998 of 2006 -5- disputed area formed part of Khasra No.159 and not part of the main road comprised in Khasra No.180. The demarcation report Ex.PX submitted by the Tehsildar was held by the learned Courts below to be not a comprehensive report since the demarcation of Khasra No.180 was not carried out. On the other hand, it was intended to extend unethical help to the owner of the Mahesh Dhaba. At the same time, from the demarcation reports Ex.D1 and DW5/A it stood established that there was encroachment on the main road. In view of the above, it cannot be said that the concurrent findings of facts arrived at by the Courts below were not based upon appreciation of the evidence available on the record. Therefore, these findings are immune from challenge and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as framed by learned counsel for the appellant, arises for determination. Accordingly, there is no merit in the appeal, which is, therefore, dismissed but without any order as to costs. ( T.P.S. MANN ) May 17, 2010 JUDGE ajay-1