R.S.A. No. 4339 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 4339 of 2010 (O&M) Date of decision:- 3.12.2010 Rajinder Singh & Anr. ... Appellants Versus Bharat Singh ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. V.K.Thakur, Advocate, for the appellants. Gurdev Singh, J (oral) This second appeal has been preferred by the appellants/defendants against the judgment and decree dated 24.12.2009 passed by Additional District Judge (Ad hoc) Bhiwani, vide which the first appeal preferred by them against the judgment and decree dated 21.12.2005 passed by Civil Judge (Jr. Division) Charkhi Dadri decreeing the suit of the respondent/plaintiff for delivering the possession of the land in dispute to the plaintiff within 40 days of the passing of the decree, was dismissed. The suit was filed by the plaintiff for permanent injunction restraining the defendants from interfering in his peaceful possession over the land measuring 2 Kanal 3 Marlas comprised in khasra No. 460/2 on the ground that he is in peaceful possession thereof and the defendants wanted to raise construction thereon forcibly and illegally. During the pendency of the suit the plaint was amended by the plaintiff and he averred in the R.S.A. No. 4339 of 2010 (O&M) -2- amended plaint that during the pendency of the suit the defendants have encroached upon 3 marlas of land out of suit land and that he be delivered possession thereof. Suit was contested by the defendants. In the written statement they denied the contentions of the plaintiff and pleaded that they are the owners in possession of khasra No.460/1 situated on the western side of khasra No.460/2. The plaintiff and his brothers constructed a wall in khasra No.460/2 about 7/8 years ago, upon which they filed a suit against them titled "Rajinder Singh and others Vs. Raj Pal and others" and got demarcated both the khasra numbers. They constructed their boundary wall after that demarcation and they never raised any construction in the plot of the plaintiff. Any construction raised by them was with the consent of the plaintiff. In replication to the written statement the plaintiff denied all the contentions raised therein and reiterated his pleadings made in the plaint. On the pleadings of the parties following issues were framed by learned trial Court:- 1. Whether the defendants have encroached upon the land of the plaintiff for 0 Kanal 3 Marlas as stated in Para No. 5A of the plaint?OPP 2. Whether the plaintiff is entitled for possession of the encroached land by the defendants after demolition of the wall of the defendants, which was construction later on?OPP 3. Whether the plaintiff is entitled for injunction as prayed R.S.A. No. 4339 of 2010 (O&M) -3- for?OPP 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the plaintiff has no locus standi to file the present suit?OPD 6. Whether the suit is false and frivolous?OPD 7. Relief. To succeed in the suit the plaintiff examined himself as PW-3, Kashmiri lal PW1 and Raghbir Parshad, Field Kanoongo PW2. On the other hand the defendants examined Jagdish Singh retired ACO, Charkhi Dadri as DW1, Rajinder Singh defendant No.1 himself entered in the witness box as DW2. After going through that evidence and hearing learned counsel for both the sides the learned trial Court decided all the issues in favour of the plaintiff and resultantly decreed his suit for possession. As already said above, the first appeal preferred by the defendants/appellants has been dismissed. I have heard learned counsel for the defendants. It has been submitted by learned counsel for the defendants that the plaintiff was never in possession of the land in dispute on the date the suit was filed and as such his suit for permanent injunction was not maintainable. He further submitted that the wall in dispute, in order to encroach upon the land of the plaintiff, was constructed by the defendants about 9 years, back which falsifies the contention of the plaintiff that encroachment was made during the pendency of the suit. He further R.S.A. No. 4339 of 2010 (O&M) -4- submitted that the finding regarding the encroachment was recorded in favour of the plaintiff on the basis of the demarcation report. That demarcation was never conducted in accordance with the instructions issued by the Financial Commissioner and incorporated in High Court Rules and Orders Vol-I. The finding could not have been recorded on the basis of such a demarcation report. According to him in view of these submissions, it is to be held that substantial question of law is involved in the present appeal. The suit was filed by the plaintiff regarding the land measuring 2 Kanal and 3 Marlas and the encroachment was found only on some portion of that land i.e. 3 Marlas. Therefore, it cannot be said that the suit of the plaintiff for permanent injunction was not maintainable. Even if he failed to prove that any part of that land was encroached upon by the defendant during the pendency of the suit even then his suit for possession could have been decreed as he successfully proved that the defendant encroached upon 0-3 Marlas of his land and the defendant never claimed adverse possession so far as the encroached portion of the land is concerned. The Courts of law are meant for doing justice to the parties. In case the plaintiff ables to prove that encroachment on his land has been made by the defendant certainly the suit for possession can be decreed even if the encroachment, which is said to have made during the pendency of the suit, was infact made before filing of the suit itself. The finding regarding the encroachment was not solely based by the lower Courts on the demarcation report. It was only taken as one piece R.S.A. No. 4339 of 2010 (O&M) -5- of evidence. Other evidence was also produced by the plaintiff for proving that 3 Marlas of land in dispute has been encroached by the defendants. It is pertinent to note that the defendants also examined the revenue official who had given the demarcation at the spot and had proved the demarcation report and the site plan prepared by him as DW1/1 and Ex.DW1/2 respectively. It was observed by the trial Court that the said report and the site plan tally with the report and site plan proved on the record by the plaintiff as Ex.P/1 and p/2. In view of what has been said above, it is concluded that no substantial question of law is involved in the present appeal and the same is, therefore, dismissed. December 3, 2010 (Gurdev Singh) tripti Judge