RSA No.3309 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3309 of 2006 Date of Decision: 22.07.2010 Deepak Bansal and another .……Appellants Versus Jagdish Chand and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Inderjit Sharma, Advocate for the appellants. Mr. Munish Gupta, Advocate for respondent Nos.1 to 3. L. N. MITTAL, J (ORAL) Suit was filed by respondent Nos.1 to 3 herein against respondent Nos.4 to 6 herein for possession of 1 Bigha 4 Biswas land alleging that respondent Nos.4 to 6 had encroached upon the said land of respondent Nos.1 to 3. Permanent injunction restraining respondent Nos.4 to 6 from interfering in peaceful possession of respondent Nos.1 to 3 over other 4 Bighas 10 Biswas land was also sought. Learned Additional Civil Judge (Senior Division), Bathinda vide judgment and decree dated 20.07.2005, decreed the suit for possession of 1 Bigha 4 Biswas land in accordance with sale deed dated 16.08.1974 as prayed for by respondent Nos.1 to 3. Against judgment and decree of the trial Court, first appeal was preferred by defendant No.3 (respondent No.6) along with Deepak Bansal and Lokesh Kumar present appellants, who were not party to the suit. The present appellants claim to have RSA No.3309 of 2006 -2- purchased 10 Biswas land from Ghansham Lal-respondent No.6. However, respondent Nos.4 and 5, who were defendant Nos.1 and 2 in the trial Court, did not prefer any first appeal against the judgment and decree of the trial Court. First appeal preferred by appellants and respondent No.6 herein has been dismissed by learned Additional District Judge, Bathinda vide judgment and decree dated 21.03.2006 with the clarification that the Executing Court before issuing warrant of possession, shall get the disputed property demarcated and only after ensuring identity and demarcation of the property, warrant of possession shall be issued. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the parties and perused the case file. Vide order dated 09.03.2010, this Court directed demarcation of the suit land by Kanango, subject to deposit of expenses by the appellants. However, the appellants did not deposit the expenses for demarcation. Report has been received from Tehsildar, Bathinda along with report of Kanango. Appellant No.2 appeared before Tehsildar, Bathinda and made statement that the appellants did not want demarcation of the suit land and they were satisfied. Father of appellant No.2 also made similar statement before the Tehsildar. In spite of the fact that the appellants did not deposit the expenses for demarcation and statements were also made before the Tehsildar that the appellants did not want demarcation, Kanango proceeded for making demarcation, but has reported that the entire khasra No.2428 of 38 Bighas is highly populated and demarcation of the land of said khasra cannot be RSA No.3309 of 2006 -3- effected. Learned counsel for the appellants contended that the plaintiffs proved demarcation report in their evidence depicting that defendants had encroached upon 1 Bigha 4 Biswas land of the plaintiffs. The said demarcation report has been upheld by the Courts below except that the lower appellate Court observed that there is some clerical error in Naksha Tafawat, but the same does not falsify the demarcation report. On the basis of demarcation report proved by the plaintiffs, the suit has been decreed. Learned counsel for the appellants contended that demarcation report proved by the plaintiffs was not in accordance with rules. The contention cannot be accepted. The Kanango, who conducted the said demarcation, established demarcation points and made the demarcation at the spot. His demarcation has been found to be legal and valid by both the Courts below. Consequently, no question of law, much less substantial question of law, arises for determination in the instant second appeal regarding correctness or legality of the said demarcation except for some clerical error in Naksha Tafawat noticed by the lower appellate Court. The suit has, therefore, been rightly decreed. In addition to the aforesaid, appellant No.2 made statement before Tehsildar on behalf of both the appellants that now they are satisfied and do not want any demarcation. In view of said statement also, there is no merit in the instant second appeal. It may also be added that the defendants did not get any demarcation in the trial Court. They were at liberty to get their land demarcated so as to rebut the demarcation report proved by the RSA No.3309 of 2006 -4- plaintiffs. However, the defendants did not do so. In fact defendant Nos.1 and 2 by not filing first appeal appear to have accepted the judgment and decree of the trial Court and did not assail the same. There is concurrent finding of fact by both the Courts below in favour of the plaintiffs. The said finding does not warrant interference in second appeal. The conduct of the appellants in not getting the demarcation done pursuant to order of this Court, also reveals that the appellants themselves are not interested in the appeal as is also manifest from the statement made by appellant No.2 on behalf of both the appellants before the Tehsildar. For the reasons recorded hereinabove, I find no merit in the instant second appeal, which is acordingly dismissed. 22.07.2010 ( L. N. MITTAL ) A. Kaundal JUDGE