Regular Second Appeal No. 2275 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 2275 of 2011 Date of Decision: 18.7.2011 Zile Singh … Appellant Versus Bansi Lal and Others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sushil Bhardwaj, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) Having remained unsuccessful in two rounds of litigation, the appellant/plaintiff approached this Court by filing the present regular second appeal. Briefly stated, the plaintiff has instituted a suit for mandatory injunction with consequential relief of permanent injunction seeking a direction that defendants No.1, 2 and 4 should remove the encroachment made by them in a Gali Shar-e-aam with consequential relief of permanent injunction restraining them from raising any further construction over the same. In the suit, it was pleaded that a gali, maintained by Gram Panchayat-respondent No.3, is in existence, width of which is 13.3 feet, from the last about 20-30 years. The gali was used by the residents of the locality. The site plan was attached with the plaint showing plaintiff's residence in green colour. It was averred that Regular Second Appeal No. 2275 of 2011 2 defendants No.1, 2 and 4 intend to encroach upon the gali in collusion with defendant No.3. It was stated that the portion marked with letters ABCD in the site plan has been encroached upon by defendants No.1, 2 and 4. Upon issuance of notice, defendants No.1, 2 and 4 filed a written statement. They raised several legal objections. They further stated that the suit was not maintainable as no permission under the provisions of Section 91 CPC was obtained. It was further pleaded that jurisdiction of the Civil Court is barred under Section 13 of the Punjab Village Common Lands Act, 1961 (hereinafter referred to as “the Act”). A specific stand has been taken by defendants No.1, 2 and 4 that the portion, shown in red colour in the site plan, is not a part of gali and the same is a part of plot No. 763, which was purchased by them vide sale deed dated 27.9.1979. After conclusion of the pleadings, the trial Court framed the following issues:- “1. Whether the plaintiff is owner in possession of the property in dispute? OPP 2. Whether the defendant No.1 has encroached upon it? OPR 3. Whether their encroachment is liable to be removed? OPR 4. Relief”. The parties to the suit examined their witnesses and tendered documents. The trial Court, vide its judgment dated 17.7.2010, decided issue No.1 in favour of the defendants and against the plaintiff. The trial Court held that it is an admitted fact that the plaintiff is not an owner of Regular Second Appeal No. 2275 of 2011 3 the gali in question. The trial Court further held that the gali is not having a uniform width. Issues No.2 and 3 were also decided in favour of the defendants and the suit was dismissed. Aggrieved against the same, the appellant filed an appeal. The lower Appellate Court, vide its judgment dated 22.3.2011, held that it is not disputed that the property, where the plots and houses of parties are situated, was a property of Qilla. It was an evacuee property and was allotted to different persons, who migrated from Pakistan. This property was allotted by the Rehabilitation Department. The lower Appellate Court further held that it is not disputed that the different allottees of the land have left the street in existence. The street was made pucca by the Gram Panchayat by laying bricks about 20-25 years ago. The lower Appellate Court relied upon the cross-examination of PW.2 Vinod that the width of gali is at variance at different places. Even in the site plan Ex.P6/A, prepared by the Local Commissioner, the width of gali, at different points, vary. Therefore, the lower Appellate Court held that it cannot be held that defendants No.1, 2 and 4 have encroached upon the gali. I have heard learned counsel for the appellant/plaintiff, who stated that the report of the Local Commissioner was per se admissible and the lower Appellate Court erred in holding that the same cannot be relied upon till an opportunity was afforded to the defendants to cross- examine the Local Commissioner. The lower Appellate Court has taken an overall view of the entire evidence led before the trial Court. Since the gali was made pucca by the Gram Panchayat by laying bricks about 20-25 years ago and there is variance of the width at various points, it cannot be said that the defendants have encroached upon the part of Regular Second Appeal No. 2275 of 2011 4 gali. It is a common knowledge that there is no planning in the village. Therefore, to non suit the defendants only on the ground that the gali should have a uniform width is too much to ask. This Court will refrain itself from disturbing concurrent findings of fact arrived at by both the Courts below. No question of law, much less a substantial one, has been raised before me which could warrant interference of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed in limine. (Kanwaljit Singh Ahluwalia) Judge July 18, 2011 “DK”