IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1750 of 1983 (O&M) DATE OF DECISION: 4th February, 2008 Prem Kumar Jain .....Appellant versus Jagjit Singh Chatwal and others .....Respondents CORAM:- HON'BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. Ashwani Kumar Chopra, Senior Advocate with Mr. Ashish Chopra, Advocate for the appellant Mr.Sandeep Jasuja, Advocate for respondents No.11 to 17 .. NIRMAL YADAV, J. C.M. No.___________of 2008: During the course of arguments learned counsel for the respondents filed an application in Court for placing on record photographs, description of construction made over Khasra No.296 and site plan of plot No.2 as Annexures R-1, R-2 and R-3, respectively. In the interest of justice and for the just decision of the case, the application is allowed and Annexures R-1 to R-3 are taken on record subject to all just exceptions. Registry is directed to assign number to the application. R.S.A. No.1750 of 1983: R.S.A. No.1750 of 1983 - 2 – Plaintiff Prem Kumar Jain has challenged the judgment and decree dated 30.7.1983 passed by Additional District Judge, Gurgaon, vide which judgment and decree dated 25.8.1982 passed by Senior Sub Judge, Gurgaon decreeing the suit of the plaintiff, was set aside. Brief facts leading to the present case are that Raja Rati Ram was the owner of three kothis situated in Civil Lines, Gurgaon. As per Ak-Shijra, Ex.D11 and Field book, Ex.D10, Kothi No.1 was situated in Field No.296 measuring 2 bighas – 14 biswas – 17 biswansi & 8 yards; Kothi No.2 in Field No.297 measuring 1 bigha –13 biaswas – 14 biswansi & 6 yards and Kothi No.3 in Field No.298 measuring 1 bigha – 19 biaswas – 7 biswansi & 55 yards. As per Jamabandi for the year 1977-78, the entire land was owned by Provincial Government. However, Khasra No.296 measuring measuring 2 bighas – 14 biswas – 17 biswansi & 8 yards was shown to be in possession of Satish Kumar son of Rati Ram; Khasra No.297 measuring 1 bigha –13 biaswas – 14 biswansi & 6 yards was in possession of Rati Ram and Khasra No.298 measuring 1 bigha – 19 biaswas – 7 biswansi & 55 yards was in possession of Smt. Sushila Rani, wife of Rati Ram. It appears that a family settlement took place, which was recognised by decree dated 4.4.1952, Ex.P2. As per Schedule ‘Dal’, attached to the decree, Kothi No.1 bearing property tax No.19W/1, fell to the share R.S.A. No.1750 of 1983 - 3 – of Sushila Rani and it was bounded on the East by Pukhta Government Road, on the West by Kothi No.1 belonging to Raja Rati Ram, on the North by Katcheri Road and on the South by District Board Playground. As per Schedule ‘Be’, attached to decree, Ex.P2, Kothi No.2, bearing Property Tax 20/W/1, fell to the share of Prem Kumar son of Raja Rati Ram and it was bounded on the east by Kothi No.1 of Raja Rati Ram, on the West by Kothi No.3 of Raja Rati Ram, on the North by Badshahpur Road and thoroughfare and on the South by District Board Playground. According to Schedule ‘Jim’, Kothi No.3 fell to the share of Satish Kumar son of Raja Rati Ram and it was bounded on the east by Kothi No.2 of Raja Rati Ram, on the West by PWD Rest House, on the North by Pukhta Road leading from courts to Badshahpur and on the south by District Board Playground. Mutations, Ex.P31 and Ex.P32 sanctioned on the basis of decree dated 4.4.1952 were attested in the year 1977. Satish Kumar, defendant No.10 was recorded in possession of Kothi situated in Khasra No.296 while Sushila Rani was recorded to be in possession of Khasra No.298 having gair mumkin Kothi therein. As per evidence on record, Kothis existing on Khasra Nos.296 and 297 were demolished. However, Kothi No.1 which was in possession of Sushila Rani was still in existence. Satish Kumar, defendant No.10 executed sale deeds, Ex.D1 to D8 in favour of defendants No.1 to 9 and transferred the entire area falling in Khasra No.296 R.S.A. No.1750 of 1983 - 4 – The plaintiff filed the present suit in the year 1979 alleging that he is the owner in possession of Kothi No.2 and towards the West of this property is Kothi No.3 belonging to defendant No.10, which has been purchased by defendants No.1 to 9. However, under the garb of those sale deeds, defendants No.1 to 9 forcibly want to take possession of an area measuring 1400 square yards shown as red in colour in the site plan, Ex.P1, for which they have no right. The suit was contested by defendants No.1 to 9 stating that area shown as ‘ABCD’ is very much a part of Kothi No.3 falling in Khasra No.296 and, therefore, the plaintiff has no right over the suit property. The trial Court after taking into consideration site plans, Ex.P1, Ex.P29 and report of the Local Commissioner, Ex.P26 held that length of Kothi No.2 is 98 feet on the northern side and ordered that decree be passed as per site plan, Ex.P29 by showing the area in red colour to be a part of Kothi No.2 belonging to plaintiff. Since aggrieved, the defendants preferred appeal and plaintiff filed cross-objections therein before the learned Additional District Judge, Gurgaon. The Ist Appellate Court, took into consideration that family settlement was recognized as per decree dated 4.4.1952, Ex.P2 vide which Raja Rati Ram had partitioned the entire area into three Kothis and all the three kothis were described as Kothi No.1, Kothi No.2 and Kothi No.3. Learned R.S.A. No.1750 of 1983 - 5 – Ist Appellate Court further took note of the fact that area of the kothis was not mentioned in the family partition. All the three kothis were described by their respective property tax assessment numbers. Even in the revenue record i.e. Field Book, Ex.D10, Shijra, Ex.D11 and Jamabandi for the year 1977-78, Ex.P33, the area has been described as Khasra No.296, 297 and 298 having gair mumkin kothis therein. The area of Kothi No.296 has been described as 2 bighas – 14 biswas – 17 biswansi and 8 yards, whereas, the area of Kothi No.297 has been given as 1 bigha – 13 biswas – 14 biswansi and 6 yards. As per Ak-shijra, Ex.P1, measurement of Kothi No.2 has been given as 192, 69, 496 and 360 feet. This area almost tallies with the site plan, Ex.P29 prepared by the Local Commissioner appointed by the trial Court. On the southern side of Kothi No.2 is the area shown in green colour in site plan, Ex.P29 which is 70 feet on southern side, 192 feet on northern side and 494 feet in length from north to south. Accordingly, the plaintiff’s plea that area shown in red colour forms part of Kothi No.2 cannot be accepted. Even in the jamabandi, area of Kothi No.2 falling in Khasra No.297 has been shown as 1 bigha – 13 biswas – 14 biswansi and 6 yards, whereas, the area of Kothi No.3 is described as 1 bigha-19 biswas– 7 biswansi and 55 yards. The trial Court based its decision mainly, on the basis of distance between pillers and oral statements of PW4-P.C. Behal, PW6-H.K. Jain. Both of them stated that there was a well in between the two kothis. R.S.A. No.1750 of 1983 - 6 – However, they have not given the exact location of the well. It has simply been stated that there was a well between the two kothis. The report of the Naib Tehsildar cannot be accepted, as according to defendants, they were not even present at the time of said demarcation. They had also raised the objection that demarcation was not initiated from the fixed points, therefore, the demarcation was against the basic rules of demarcation. Admittedly, the existence of well or pillars or the distance between the pillars cannot determine the exact measurement of the area. The Local Commissioner had acted beyond the reference and demarcation was not made as per the settled norms, therefore, no evidentiary value can be attached to the report. Learned counsel for the appellant/plaintiff argued that even owner of Kothi No.3 Satish Kumar Jain was not produced and, therefore, adverse inference should have been drawn against the defendants. The argument is not at all impressive. Defendant No.10 Satish Kumar Jain had already disposed of the property to defendants No.1 to 9 and, therefore, he had no interest left in the suit property. Learned counsel for the appellant/plaintiff has failed to point out any substantial question of law having been involved in the regular second appeal. In fact, the entire case is based on facts and evidence on record. The learned Ist Appellate Court after appreciating the evidence R.S.A. No.1750 of 1983 - 7 – in its true perspective, has set aside the order of the trial Court, which does not call for any interference in the present appeal, which is hereby dismissed. 4th February, 2008 ( NIRMAL YADAV ) pc JUDGE