IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1010 of 2009 (O& M) Date of Decision: 10.2.2010 Kaladhari Singh and others. ....... Appellants. Versus Mangal Singh and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Pankaj Katia, Advocate for Shri Sanjiv Bansal, Advocate for the appellants. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.2945-C of 2009 The application is allowed and the delay of 328 days in refiling of the appeal is condoned. R.S.A.No.1010 of 2009 This Regular Second Appeal is directed by three of the defendants against the judgments and decrees dated 31.5.2005 and 20.9.2007 passed respectively by the Additional Civil Judge (Senior Division), Jind (hereinafter described as `the trial Court') and the Additional R.S.A.No.1010 of 2009 (O&M) -2- .... District Judge, Jind (referred to hereinafter as `the first appellate Court'). The plaintiff-respondent no.1 had filed a suit for mandatory injunction by pleading that he along with his brothers, namely, Gominder Singh, Molar Singh, Chatter Singh and Bijey Singh was owner in possession of `Gair Mumkin Bara' bearing no.87 (2 K -1M) and 89/1 (0K- 19M) along with adjoining land depicted with letters BCDE in the site plan attached with the plaint and the same was being used by them for tethering their cattle and storage of fodder etc. It was further pleaded that there is a thoroughfare in rectangle no.88 which is owned by the Gram Panchayat and is being used by the inhabitants of the village as street for coming and going towards their fields. Respondent no.1 had averred that this passage falls in between rectangle nos.87 and 89/1 which are owned by him and his brothers and is shown in red colour in the site plan. It was alleged that with some ulterior motive to grab/ encroach the said street, the defendants raised a construction of chabutra measuring 2-1/2' x 18' which was also shown in the site plan and thus, the passage of the inhabitants has been blocked. Upon notice, the defendants had appeared and filed a written statement contesting the suit. They had pleaded that if the land in question belonged to the Gram Panchayat, it should have proceeded against them under the provisions of the Punjab Village Common (Lands) Act and that no legal notice was served upon them. They denied the allegations made in the plaint and also denied that they had made any encroachment on the street. The trial Court as well as the first appellate Court returned the findings against the defendants and held that there was encroachment made R.S.A.No.1010 of 2009 (O&M) -3- .... by them and that they had blocked the passage of the villages by raising construction as pointed out by respondent no.1. Accordingly, the suit was decreed and the appeal of the defendants was dismissed. Learned counsel for the appellants has contended that the findings of the Courts below are perverse and are liable to be set aside as they are contrary to the evidence on record. I have thoughtfully considered the contention of the learned counsel for the appellants and have gone through the impugned judgments. Respondent no.1, in order to prove his case, had produced oral as well as documentary evidence to show that the site plan which he had attached with the plaint was correct and that the defendants had made encroachment on the street at point AB. The Local Commissioner, who was appointed to inspect the site, had also supported the case of respondent no.1 by way of his report, Exhibit P5. The defendants have not been able to show any material from which it can be inferred that there was misreading of evidence by the Courts below. In any eventuality, whether there existed any wall or not as an encroachment by the defendants in the street, is purely a question of fact which has been determined by the Courts below and in the absence of any material to the contrary, the determination of such a fact can neither be termed to be perverse or erroneous so as to warrant any interference in the Regular Second Appeal. No ground to interfere. Dismissed. February 10,2010 ( Mahesh Grover ) “SCM” Judge