RSA No.988 of 2010 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA.No.988 of 2010 (O&M) Date of decision: 9.9.2010 Gram Panchayat village Barwala Khurd and another ...Appellants vs Surjit ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr. J.S.Thind, Advocate, for the appellants. Mr.Arun Beniwal, Advocate, for the respondents. Rakesh Kumar Garg,J. This judgment shall dispose of Regular Second Appeals bearing No.988,990 and 1130 of 2010, as common question of law on similar facts have been raised in all these appeals by the appellants, and the appeals arising out of the three suits were decided by the lower Appellate Court by one common judgment. It may also be noticed that all the suits were consolidated and decided together by the trial Court vide its judgment and decree dated 19.01.2009. The plaintiff-respondents filed suits for permanent injunction restraining the appellants from interfering into their possession over the houses constructed on plots No.8,9,20,21 and 23, as per the description given in the site plan and also from encroaching upon or creating any structure over any part of the aforesaid khasra numbers. The respondents also sought mandatory injunction directing the respondents to restore the existing position prior to 17.3.2002 qua the construction and possession of their houses by restoring the demolished pucca boundary wall of seven feet RSA No.988 of 2010 2 height and wall of the rooms. As per the averments made in the civil suits, plaintiff- respondents had purchased the aforesaid land in the year 1989 and mutation was also sanctioned in their favour. Thereafter, they constructed their residential houses over the land. Their possession over the residential houses in dispute is peaceful and lawful and the defendant-appellants have nothing to do with the same. It was further alleged that Sarpanch of the village was not having good relations with them due to party faction in the village and was adament to interfere in their peaceful possession as owners without any right or authority. The defendants threatened to demolish the constructions of their houses forcibly. Subsequently, an application was moved to the Tehsildar, Ellenabad for demarcation of the suit property and on that application, Hari Ram, Kanungo (Retd) was appointed as Local Commissioner to demarcate the suit property. Accordingly, he submitted his report dated 22.7.2001 justifying possession of the plaintiffs. It was further averred in the suits that plaintiffs had constructed their houses after leaving two karams towards Eastern side and their possession over the suit property was legal and justified. After submission of the report by the Local Commissioner they themselves demolished part of their houses and intimation was given to the authorities and thereafter, there was no encroachment over khasra No.123 by them. It was further alleged that in order to save the encroachment of one Om Parkash in Khasra No.123, the defendants wanted to demolish the pucca boundary wall of their houses which was seven feet height the walls and the roof of their rooms to which the defendants have no right. Thus, the plaintiffs sought mandatory injunction directing the defendants not to demolish the unauthorised RSA No.988 of 2010 3 encroachment and constructions if any done and they were entitled to that portion of the land and to restore the position of the houses of the plaintiffs which existed prior to 17.3.2002. The defendants refused to admit the claim of the plaintiffs. Hence, the present suit. Upon notice, the defendants appeared and filed written statement controverting the facts mentioned in the plaints Various preliminary objections were raised. On merits, it was stated that plaintiffs were required to prove their ownership over the area in question. It was stated that plaintiffs have encroached upon the area of Phirni comprised in khasra No.123. Some persons had moved an application before the Sub Divisional Officer on 8.6.2001 for demarcation of the area of the Phirni, whereupon, the demarcation of the Phirni comprised in Khasra No.123 was effected by Field Kanungo on 5.7.2001. As per the said report, plaintiffs had encroached upon a portion of the Phirni comprising in khasra No.123, which was illegal and the defendants had the right to remove unauthorised and illegal possession. It was further averred that since unauthorised encroachment was removed through a legal process, on the basis of demarcation report dated 5.7.2001. The plaintiffs were not entitled to any relief and the suit was liable to be dismissed. Replication was filed controverting the averments of the defendants taken in the written statements and reiterating those taken in the plaint. After hearing learned counsel for the parties and perusing the evidence on record the trial Court concluded that there was no dispute that the plaintiffs were owners in possession of the land in dispute as per their pleadings. The version of the defendants was only that the Phirni is RSA No.988 of 2010 4 comprised in khasra No.123 and this khasra number was measured by virtue of report dated 5.7.2001, according to which the plaintiffs were found in unauthorised possession of the suit land comprised in khasra No.123 pertaining to the Phirni. Hence, the encroachment was removed in accordance with law, and since the plaintiffs have admitted in their pleadings that they have removed the encroachment and then informed the concerned authorities seems to be unjustifiable and it was highly improbable that they themselves removed the encroachment of their houses. The report of the Local Commissioner dated 22.7.2001 appointed at the instance of the plaintiffs who had given the report in favour of the plaintiffs was not accepted. In fact, the trial Court discussed both the reports and while dismissing the suits it was observed that both the reports of the Local Commissioners were quite different and were causing ambiguity. It may also be noticed that a third Local Commissioner was appointed by the Court itself who submitted his report dated 22.1.2008. However, the aforesaid report was also discarded by the trial Court. Not satisfied from the aforesaid judgment and decree of the trial Court, the plaintiffs filed appeals before the lower Appellate Court, which were accepted by the Additional District Judge, Sirsa vide impugned judgment and decree dated 2.2.2010. While accepting the appeal, the lower Appellate Court noticed that according to the report of the Local Commissioner dated 22.1.2008, the plaintiff-respondents were not in unauthorised possession of their own plots and the aforesaid report of the Local Commissioner could not have been ignored from consideration and after considering the aforesaid report which clearly shows that the plaintiffs were not in unauthorised possession RSA No.988 of 2010 5 and the demolition was done by the appellants unauthorisedly held that the plaintiff-respondents were entitled to the relief claimed. Not satisfied from the aforesaid judgment and decree of the lower Appellate Court, the appellant-defendnats have approached this Court by filing these appeals. Learned counsel for the appellants has vehemently argued that the impugned judgment and decrees are result of misreading of evidence as the demarcation report dated 22.7.2001, (which was in favour of the plaintiff- respondents) could not have been considered especially when the demarcation report dated 05.7.2001 has established that plaintiffs had encroached upon the Gram Panchayat land and, therefore, the findings of the lower Appellate Court being perverse are liable to be set aside. Elaborating his argument further, learned counsel for the appellants has vehemently argued that the plaintiff-respondents were found in possession of the Gram Pnachayat land comprised in Phirni and the report of the Local Commissioner dated 22.1.2008 does not speak regarding identification of khasra number of the plaintiff as alleged in the plaint but referred to the land comprised in khasra No.123 pertaining to the Phirni. Moreover, the plaintiffs were to stand on their own legs by proving their case which they have miserably failed. On the basis of the aforesaid arguments, learned counsel for the appellants submitted that the following substantial questions of law arise in this appeal for consideration:- “1. Whether any notice under section 205 of Haryana Panchayati Raj Act, 1994 is required and without notice suit is maintainable ? RSA No.988 of 2010 6 2. Whether the judgment and decree passed by the learned lower Appellate Court is based upon conjectures and surmises and passed the judgment without dealing with the observations given by the learned trial Court while dismissing the suit of the plaintiff ? 3. Whether the judgment and decree passed by the lower Appellate Court is misreading of evidence and wrongly relied upon the demarcation report dated 5.7.2001, specially when demarcation report dated 22.7.2001 which has given reasoning that plaintiff has encroached upon Gram Panchayat land ? 4. Whether a person can get injunction when he is liable to prove his ownership regarding the land in dispute and specially when the possession is unauthorised ? 5. Whether the pleading and evidence are contradictory and the evidence and the evidence led by the plaintiff beyond the pleading can be read as evidence and also vice versa ? On the other hand, learned counsel appearing on behalf of the respondents has supported the impugned judgment and decree and has submitted that on re-appraisal of evidence the lower Appellate Court has found that the plaintiff-respondents were not in unauthorised possession and the demolition of their houses was done by the appellants illegally and, therefore, the plaintiff-respondents were entitled to the relief and in view of the aforesaid finding, no substantial question of law can be said to be arising in this appeal and the same is liable to be dismissed. I have heard the learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. From the pleadings and the arguments raised, the only dispute between the parties is whether the plaintiff-respondents are in unauthorised possession of khasra No.123 pertaining to the Phirni. As per the stand of RSA No.988 of 2010 7 the plaintiff-respondents they are owners in possession of the land which belongs to them and no part of the phirni has been encroached upon by them, whereas, the appellants' case is that plaintiff-respondents have encroached upon the government land comprised in khasra No.123. Admittedly both the parties i.e. appellants and the respondents relied upon the demarcation reports dated 5.7.2001 and 22.7.2001 respectively. However, both the aforesaid reports of the Local Commissioners were found unreliable by the trial Court and hence a Local Commissioner was appointed by the Court who submitted his report dated 22.8.2001 according to which the plaintiff-respondents have not encroached upon any land belonging to the appellants. The aforesaid report has been submitted by the Local Commissioner appointed by the Court. It is nobody's case that the report of the Local Commissioner is biased in favour of any party. The Courts below on the basis of the aforesaid report of the Local Commissioner have concluded against the appellants. Even otherwise the aforesaid fact whether land of the appellants has been encroached upon is essentially a question of fact, which has been answered against them on the basis of the evidence on record which cannot be termed as perverse finding. Thus, no substantial question of law, as argued, arises in these appeals. Consequently, all these appeals are dismissed with no orders as to costs. ( Rakesh Kumar Garg) Judge September 9, 2010 rk RSA No.988 of 2010 8