RSA No.1510 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1510 of 2010 (O&M) Date of decision: 27.10.2010 Dalip Singh and another ......Appellant(s) Versus Smt. Gurdayal Kaur ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. V.K. Jindal, Advocate for the appellants. Rakesh Kumar Garg, J. By way of this appeal, defendants No.1 and 5 have challenged the judgment and decree of the Lower Appellate Court whereby suit of the plaintiff-respondent for possession of the suit land has been decreed and the defendants have been restrained from raising any further construction or encroachment over the suit land. Brief facts of the plaintiff's case as emerged from the record are that previously Ram Singh son of Hari Singh was owner of the suit land. The plaintiff-respondent being wife of Ram Singh was Class-I legal heir. Ram Singh executed will dated 25.7.1993 in favour of the plaintiff. Ram Singh died on 1.7.1995. Mutation No.152 dated 16.7.1997 was sanctioned. However, the defendants, who were strong headed persons, encroached upon the suit land and raised construction of wall thereon. They were requested time and again to hand over the possession of suit land but they were lingering the matter on one pretext or the other. On her application, Assistant Collector, 2nd Grade, Narnaul, got demarcated the land of the plaintiff who submitted his report to the effect that the RSA No.1510 of 2010 (O&M) 2 defendants had made encroachment on the suit land by way of construction of wall. Hence, the necessity arose to file the suit. Defendants No.3 and 4 were proceeded against ex parte. In the written statement filed on behalf of defendant No.1 apart from various preliminary objections, it was admitted that Ram Singh was the owner of the suit land but the plaintiff was not sole legal heir of Ram Singh, Charan Singh, Tirath Singh, Santokh Singh, Kirpal Singh and Narain Singh (sons) and Gurbachan Kaur, who was the daughter of Ram Singh, were also legal heirs. The Will in favour of the plaintiff-respondent was denied stating that the same was not binding upon him. Any encroachment upon the land belonging to the plaintiff was denied. It was further stated that defendant No.1 was co-owner in possession of land comprised in Khewat No.10, Khatoni No.12, Killa and Khasra Nos.15//14/2, 5//17, 5//23, 5//4/1, 8//4/1, 12//1 total land measuring 22 kanals 1 marla situated in the revenue estate of village Buchakpur, Tehsil Narnaul and that the plaintiff had no concern with the wall which was in Killa No.5/26 and the same was existing since long. Ram Singh never raised any objection. Since defendants had not encroached any land of the plaintiff, there was no question of vacation of the same. Demarcation report relied upon by the plaintiff was wrong. Dismissal of the suit was prayed for. Defendants No.2 and 5 filed separate written statement on similar lines and prayed for dismissal of the suit. To substantiate their respective case, both the parties led oral as well as documentary evidence. After hearing learned counsel for the parties and going through the record, the trial Court dismissed the suit of the plaintiff with costs. RSA No.1510 of 2010 (O&M) 3 Feeling aggrieved therefrom, the plaintiff filed an appeal before the Lower Appellate Court which was accepted vide impugned judgment and decree. Still not satisfied, defendants No.1 and 5 have approached this Court by way of this appeal submitting that the following substantial questions of law arise in this appeal: “(i) Whether the report of Local Commissioner is per se admissible? (ii) Whether the appellant objectors is entitled to an opportunity to substantiate their objections before acceptance of the report of Local Commissioner? (iii) Whether the report of the Local Commissioner dated 14.11.2006 has been rebutted on the basis of the report dated 17.1.1998? (iv) Whether it is a case of complete misreading of evidence? (v) Whether grave and manifest injustice has been done to the appellant? I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. At the outset it may be noticed that initially learned counsel for the appellants has raised an argument that the objections filed to the report of the Local Commissioner appointed by the Court were not considered by the Lower Appellate Court. However, in view of a Division Bench judgment of this Court in AIR 1989 Punjab & Haryana 257 titled as “ Balbir Dewan v. Naveen Chander” wherein it has been held that objections filed to the report of the Local Commissioner appointed by the Court are not maintainable, learned counsel for the appellants did not press the aforesaid RSA No.1510 of 2010 (O&M) 4 argument. Learned counsel for the appellants further argued that the report relied upon by the Lower Appellate Court to decree the case of the plaintiff is incorrect and the findings which are based upon the same are liable to be set aside being perverse. Again the argument raised by the learned counsel for the appellants is without any merit and is liable to be rejected. The sole controversy before the Court is as to “whether the appellants have encroached upon the land of the plaintiff-respondent as described and detailed in the plaint”. As noticed by the Lower Appellate Court, according to the demarcation report dated 17.1.1998 prepared by Babu Lal, Kanungo it was found that the appellants had encroached upon the land of the plaintiff and by constructing the wall, the appellants had also included the land of Gair Mumkin Rasta. However, the said report was not admissible in evidence as the same was not proved by examining Babu Lal, Kanungo. However, in addition to this, Naib Tehsildar of Narnaul was also appointed as Local Commissioner by this Court for the demarcation of the property in dispute who submitted his detailed report in the Court. A perusal of the aforesaid report dated 14.11.2006 reveals that on demarcation, it was found that the appellants had encroached upon the land of the plaintiff to the extent of 13 marlas. There was no legal impediment before the Lower Appellate Court from relying upon the aforesaid report of the Local Commissioner only because the Local Commissioner was not examined. It may be seen that the said report was submitted by the Local Commissioner who was appointed by the Court itself and thus, the said report of the Local Commissioner was part and parcel of the Court file and was relevant and admissible piece of evidence. Learned counsel for the appellants was unable to controvert RSA No.1510 of 2010 (O&M) 5 the aforesaid findings of the Lower Appellate Court which are based upon legal evidence. Thus, no fault can be found with the same. No substantial question of law arises in this appeal. Dismissed. October 27, 2010 (RAKESH KUMAR GARG) ps JUDGE