RSA NO. 698 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 698 of 2008 Date of decision: 04.02.2011 Jagtar Singh .....Appellant Versus Karam Singh and Others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.B.R.Mahajan, Advocate, for the appellant Mr.Anil Chawla,Advocate for respondents No. 1 to 4 **** SABINA, J. Plaintiffs had filed a suit for permanent injunction restraining defendants No. 1 and 2 from demolishing the khal in dispute. The case of the plaintiffs in brief was that Balwant Singh and defendant No.3 were owners of the suit property. During his life time, Balwant Singh had given the property in dispute to the plaintiffs and defendant No.3 for construction of their residential houses. A common path had been left in front of the houses on the northern side and there was a khal left by the Consolidation Department at the RSA NO. 698 of 2008 2 spot. Defendants No. 1 and 2 were threatening to demolish the said khal. Defendants No. 1 and 2 in their written statement averred that the plaintiffs had encroached upon 1 kanal of land belonging to defendants on the southern side of khasra Nos. 29//6/2, 7/2, 15/1,14/2. When the said fact came to the knowledge of the defendants then they got the land demarcated from the Patwari Halqa. The khal has been constructed by the plaintiffs by encroaching the land belong ing to the defendants. Defendants filed the counter claim claiming possession of the land measuring 1 kanal encroached by the plaintiffs on the southern side of khasra No. 29//6/2, 7/2,15/1, 14/2. In reply to the counter claim, plaintiffs denied the contentions in the counter claim. It was averred that the plaintiffs were using the khal in question. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether Balwant Singh father of plaintiffs and defendant No.3 was earlier owner of suit property situated in Khara nos. 29//14/3, 15/3 of village Keiron, Tehsil Pati, District Amritsar?OPP 2.Whether Balwant Singh gave this land about 30/35 years back to plaintiffs ad defendant no.3 for raising their residential house and accordingly, they have raised construction as shown in the site plan and have left a common path in front of their houses on northern side and there is also khal permanently left by Consolidation Department with this path?OPP RSA NO. 698 of 2008 3 3.Whether plaintiffs and defendant No.3 have grown trees in front of their houses on northern, western corners and puli has been constructed on the khal by putting cemented pipes?OPP 4.Whether defendants No.1 and 2 are threatening to demolish the khal and wanted to include land of common path left by plaintiffs and defendant No.3 in their land and to demolish the construction raised by plaintffs and defendant no.3?OPP 5.Whether plaintiffs are entitled for decree of permanent injunction against the defendants from demolishing the khal or construction raised by plaintiffs and defendant no.3?OPP 6.Whether plaintiffs have encroached land of defendants No.1 and 2 on the southern side of Khasra Nos. 29//6.2, 7/2,15/1,14/2 and this fact came to their notice after demarcation from the patwari Halqa?OPD 7.Whether plaintiffs cannot take the benefit of their own wrong?OPD 8.Whether plaintiffs are estopped by their act and conduct from filing the present suit?OPD 9.Whether plaintiffs have got no locus standi to file the present suit?OPD 10.Whether defendants No. 1 and 2 are entitled for decree of possession in the counter claim of land measuring 1 kanal allegedly encroached by plaintiffs on the southern side of Khasra Nos. 29//6/2, 7/2,15/1, 14/2 of village Kairon, Tehsil Patti, District Amritsar?OPD RSA NO. 698 of 2008 4 11.Whether counter claim as prayed is not maintainable in the present form?OPP 12.Whether defendant No.1 and 2 have not come to the court with clean hands and they are not entitled for any relief?OPP 13.Whether plaintiffs have become owners of the land shown as common passage on the site plan attached with the plaint by way of adverse possession?OPP 14.Relief”. The trial Court partly decreed the suit of the plaintiffs and restrained defendants No. 1 and 2 from demolishing the houses of the plaintiffs and defendant No.3 and also from demolishing passage and khal except in due course of law. The claim of the plaintiffs that they had become owners of the passage by way of adverse possession was dismissed. The counter claim filed by defendants No. 1 and 2 was dismissed. Aggrieved by the said judgment and decree, defendants No. 1 and 2 preferred an appeal and the plaintiffs filed cross appeal. Vide judgment and decree dated 17.12.2007, the Additional District Judge Tarn Taran dismissed both the appeals. However, the finding on issue no. 11 and 12 were returned in favour of the defendants and hence, the present appeal by defendant No.2. After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves dismissal. Father of the plaitniffs-Balwant Singh and defendant No.3 were owners of khasra No. 29//14/3,15/3. Plaintiffs and defendant had constructed their houses on the said land. A passage was also in existence at the spot . In this regard, plaitniffs had proved the site RSA NO. 698 of 2008 5 plan Exhibit P1. The draftsman (Parvinderjit Singh), who has pepared the site plan, has been examined by the plaintiffs as PW1 . As per the copies of the jamabandies placed on record, Balwant Singh was in possession of Khasra No. 29//14/3, 15/3. One kanal out of the said land was described as gair mumkin abadi. Defendants had placed reliance on Exhibit D4, demarcation report in order to establish that the plaintiffs had encroached upon 1 kanal of land belonging to them. However, defendants had failed to prove the said report by examining the official who had prepared the report. The demarcation report dated 4.6.2002 was prepared before the filing of the suit. Thus, the Courts below had rightly not placed reliance on the report Exhibit D4 as the same had not been duly proved. In these circumstances, the judgments and decrees passed by the Courts below call for no interference. No substantial question of law arises in this case. Dismissed. ( Sabina ) Judge February 04, 2011 arya