R.S.A. No. 999 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 999 of 2010 (O&M) Date of Decision : 8.3.2010 Lakhwinder Singh & others .......... Appellants Versus Puran Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Tribhawan Singla, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 2901-C of 2010 This application under Section 5 of the Limitation Act has been moved for condoning the delay of 37 days, in re-filing the appeal. In view of the averments made in the application, which are supported by an affidavit, this application is allowed, delay of 37 days in re- filing the appeal is condoned. C.M. No. 2902-C of 2010 This application under Section 5 of the Limitation Act has been moved for condoning the delay of 34 days in filing the appeal. In view of the averments made in the application, which are supported by an affidavit, this application is allowed, delay of 34 days in filing the appeal is condoned. R.S.A. No. 999 of 2010 2 R.S.A. No. 999 of 2010 & C.M. No. 2903-C of 2010 This regular second appeal is directed against the judgment and decree dated 7.8.2009, passed by the learned Courts below, vide which suit filed by the plaintiff / respondents for possession and permanent injunction was decreed. The plaintiff / respondents filed a suit with the averments, that the plaintiffs are owners in possession of land measuring 17 Kanals 4 Marlas. It was the case of the plaintiff / respondents, that part of their land had been illegally encroached upon by defendant / appellants. The suit was based on the report of demarcation, got conducted by the plaintiff / respondents, wherein in spite of notice defendant / appellants chose not to appear. The learned trial Court on appreciation of evidence decreed the suit, and held that the plaintiff / respondents were entitled to possession of 11 Marlas of encroached land. The decree was passed for possession of land measuring 11 Marlas. The appellant / defendants preferred an appeal. In appeal before the learned Addl. District Judge, the only point raised was, that in view of the dispute between the parties, another Local Commissioner was appointed by the learned Court to demarcate the property, with the consent of the parties. The Local Commissioner submitted his report, wherein it was again reported, that the defendant / appellants, had encroached upon the R.S.A. No. 999 of 2010 3 land of the plaintiff / respondents. The learned lower appellate Court held, as per report of the Local Commissioner appointed by the Court, appellants had encroached 15 Marlas of land belonging to plaintiff / respondents. The learned trial Court had accepted the report, relied upon by plaintiff / appellants showing lesser area i.e. 11 Marlas has been encroached by the defendant / appellants, than the one pointed out by the Local Commissioner appointed by Court, in his report. The learned lower appellate Court held, that no ground was made out to interfere with the findings of the learned trial Court. Mr. Tribhawan Singla, learned counsel appearing on behalf of the appellants contended, that the appeal raises, following substantial question of law:- Whether in view of the difference in the demarcation reports of the Local Commissioners, the Court should have appointed the 3rd Local Commissioner to determine the actual position? In support of the substantial question of law, the learned counsel for the appellants contended, that the learned lower appellate Court found, that as a matter of fact, there was difference, between the demarcation report relied upon by the plaintiff / respondents and one given by the Local Commissioner, appointed by the Court with the consent of the parties. It was, therefore, not correct for of the learned Courts below, to accept report of the first local commissioner, who carried out demarcation at R.S.A. No. 999 of 2010 4 the back of the defendant / appellants. On consideration, I find no force in the contention of the learned counsel for the appellants. The report submitted by the Local Commissioner appointed with the consent of the parties, showed that the defendant / appellants had encroached 15 Marlas of land. However, keeping in view, that the plaintiff /respondents had relied upon the Local Commissioner report, vide which demarcation was carried out prior to filing of this suit, the Court passed decree for 11 Marlas only. The learned Court is competent to accept one of the reports. There is no provision or necessity to appoint 3rd Local Commissioner, as contended by the learned counsel for the appellants. The concurrent finding of fact is not open to challenge, in the regular second appeal. The substantial question of law raised, is answered against the defendant / appellants. No merit. Dismissed. 8.3.2010 ( VINOD K. SHARMA ) 'sp' JUDGE