Regular Second Appeal No. 20 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 20 of 2010 Date of decision : January 25, 2011 Chander Bhan ....Appellant versus Jagdish and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. OP Goyal, Senior Advocate with Mr. Varun Gupta, Advocate, for the appellant L.N. Mittal, J. (Oral) Plaintiff Chander Bhan having lost in both the courts below has filed the instant second appeal. Appellant-plaintiff filed suit that he along with proforma defendants no. 5 to 9 is owner in possession of land measuring 1 kanal comprised of khasra no. 253. Out of it they have left portion depicted by letters ABCD in the site plan as their own passage for their old houses in abadi. The said passage is owned by plaintiff and proforma defendants. However, defendants no. 1 to 4 were bent upon to raise construction on the said passage without any right to do so. Accordingly, the plaintiff sought permanent injunction restraining the defendants for raising any construction in the disputed passage. Defendants no. 1 to 4 admitted that plaintiff and proforma Regular Second Appeal No. 20 of 2010 -2- defendants are owners of land of khasra no. 253. Defendants no. 1 to 4 pleaded that they are owners of 2 kanals 6 marlas land of khasra no. 254 lying towards east of khasra no. 253. Site plan filed by the plaintiff is wrong. No passage is in existence at the spot. There is phirni towards north of both khasra nos. 253 and 254. In fact plaintiff and proforma defendants intended to encroach upon land of the contesting defendants comprised of khasra no. 254. Contesting defendants obtained demarcation of their land and it was found that plaintiff and proforma defendants had made encroachment thereon to the extent of 60 feet in east and west, 10.9 feet in south and 9.6 feet in north. Accordingly, contesting defendants made counter claim for possession of the encroached portion of their land by removal of encroachment. Various other pleas were also raised. Proforma defendants were proceeded ex parte. Learned Civil Judge (Junior Division), Mohindergarh vide judgment and decree dated 12.4.2006 dismissed the plaintiff's suit as well as counter claim preferred by contesting defendants. Plaintiff as well as contesting defendants preferred first appeals against judgment and decree of the trial court. Learned Additional District Judge, Narnaul vide common judgment and decree dated 22.9.2009 dismissed both the said appeals. Feeling aggrieved, the plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that as per demarcation report Ex. PW4/A, contesting defendants were found to have encroached upon the disputed passage. The contention cannot be Regular Second Appeal No. 20 of 2010 -3- accepted. Mahabir Singh PW2 was appointed as Local Commissioner by the trial court for demarcation of khasra no. 253 belonging to plaintiff and proforma defendants and khasra no. 254 belonging to contesting defendants. No objection has been preferred against demarcation report made by Mahabir Singh after visiting spot on 6.4.2006 under the supervision of Tehsildar O.P. Godara. They have reported that contesting defendants are in possession of 36 karms length although they are owners of 34 karms length of land. Similarly, plaintiff and proforma defendants who are owners of khasra no. 253 are in possession of 16 karms length although they are owners of 14 karms length. Thus, both the parties are in possession of excess land to the extent of 2 karms each. It has also been reported in the said report that neither party has encroached upon land of the other party. No objection has been preferred against the said report. Consequently, the said report has clinched the matter and therefore, suit filed by the plaintiff as well as counter claim made by the contesting defendants have been rightly dismissed by both the courts below. There is no infirmity much less illegality in the impugned judgments of the courts below in non-suiting the plaintiff. There is concurrent finding by the courts below based on proper appreciation of evidence. The said finding does not warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is, thus, found to be without any merit and is accordingly dismissed in limine. ( L.N. Mittal ) January 25, 2011 Judge 'dalbir'