R.S.A.No. 1716 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1716 of 2009 (O&M) Date of decision: 18.11.2009 Ramesh Kumar ......Appellant Versus Raj Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sandeep Arora, Advocate, for the appellant. **** SABINA, J. Plaintiffs Ramesh Kumar and others filed a suit for possession , which was dismissed by the Additional Civil Judge (Sr.Divn.), Gurdaspur vide judgment and decree dated 10.1.2002. In appeal, the said judgment and decree were upheld by the Additional District Judge, Gurdaspur vide judgment and decree dated 2.9.2008. Hence, the present appeal by plaintiff No.1. R.S.A.No. 1716 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The factual matrix of the case of the plaintiffs is that they are owners of the land measuring 12 marlas depicted in the site plan. They have also relief upon copy of jamabandi to this effect. The defendants have plot of 6 marlas adjoining the plot of the plaintiffs. His property bears khasra No.145. Plaintiff No.1 is a Govt. employee posted at Jugial. When he came to the village to built a house, he found that defendants have built a room without a roof. The same has since fallen and there is only malba on the spot. The plaintiffs have requested the defendants to remove the malba from area marked EFGH in the site plan. It has been contended that the plaintiffs applied for demarcation of the property in dispute. On the instructions of the Assistant Collector IInd Grade, Gurdaspur, Halqa Patwari and Quango made nishandehi of 12 marlas of land on 4.6.1996 and it was found that defendants have built a room upon the land of the plaintiffs. The defendants claimed that they have illegally and forcibly encroached upon the other portion marked ADHE and BCGF shown in red colour in the site plan and the same is lying vacant. The plaintiffs have constructed R.S.A.No. 1716 of 2009 (O&M) 3 their house some portion is under construction marked JKIM in the site plan on their land. The defendants have refused to remove the malba from the portion marked EFGH. Hence, the present suit. 3. Notice of the suit was served upon defendants, who appeared and filed written statement, wherein they admitted the ownership of the plaintiffs over khasra No.146 and 147/1. The defendants alleged that they are owners of plot measuring 6 marlas comprised in khasra No.145. The same is stated to be in possession of defendant Raj Kumar, who is using the same as haveli. There are two rooms constructed on it and the plot is enclosed by a boundary wall. It is denied that the defendants have encroached upon the property of the plaintiffs. The construction has been raised by the defendants over their own plot. The defendants have further contended that plaintiffs No.1, 2 and 3 had earlier threatened to take forcible possession of the plot owned by the defendants and they field suit for permanent injunction, which was dismissed by the Court of Sh.Ram Kumar, Civil Judge, Junior Division, Gurdaspur, but the appeal filed was accepted by the then learned Additional District Judge, Gurdaspur and decree dated 17.4.1997 was passed in favour of Raj Kumar defendant who was R.S.A.No. 1716 of 2009 (O&M) 4 plaintiff in that suit. The defendants have encroached their plot by pacca boundary wall in order to check any encroachment. There are two rooms in existence in the plot owned by defendants since long and with the passage of time roof of one of the room has fallen. The demarcation report as alleged by the plaintiffs is wrong and illegal. The same is incorrect. No encroachment has been made by the defendants over the property owned by the plaintiffs. All other allegations were specifically denied. It is prayed that suit of the plaintiff be dismissed with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs are owners of the suit land alleged? OPP 2. Whether the defendants have made encroachment on a portion of ABCD of the property belonging to the plaintiff? OPP 3. Whether the suit as framed is not maintainable? OPD 4. Whether on account of family arrangement, the disputed property is in possession of the defendants? OPD 5. Whether the plaintiffs are entitled to the R.S.A.No. 1716 of 2009 (O&M) 5 possession of the suit property? OPD 6. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Learned Additional District Judge, in para 14 of the impugned judgment, has observed as under:- “Now adverting to the pleadings, in which its para No.3, it has been pleaded that plaintiff No.1 is a Government employee posted at Jugial and he came to his village to build a house there. When he came there, he found that the defendant had built a room 12' x 15' marked as EFGH without roof as shown in the site plan, but surprisingly, this site plan has not been proved, which will attract adverse inference against the plaintiff. He had not mentioned any date, month or year when the alleged encroachment had taken place. Area mentioned i.e. 12' x 15' which does not tally with the head note of the plaint, where 4 marlas had been encroached upon, while in the plaint, it is said to be 12' x 15' that means more than 7 marlas. The learned trial Court had mentioned report Ex.P-1 but there is no endorsement on the report alleged to be Ex.P-1 which had been proved. The learned trial Court had taken stock of the judgment passed earlier on R.S.A.No. 1716 of 2009 (O&M) 6 7.4.1997 regarding the settlement to the effect that present plaintiff had admitted the title and ownership of defendant Raj Kumar, over 6 marlas of land comprised in Khasra No.145 as per jamabandi for the year 1993-94. The court had relied upon discussing this demarcation report, which is only photo copy and no permission has been obtained to prove it as piece of secondary evidence. Certainly, it is not a certified copy, which can be said to be per se admissible tendered by Naib Tehsildar. Even, if it is read against the plaintiff, which had relied upon, but it does not show that defendants had occupied more area than their ownership as per Khasra No.145. So, the learned trial Court has rightly observed that the plaintiff has failed to prove that defendants have made encroachment upon the property belonging to them in Khasra No.146 and 147/1 and it is held that they are not entitled to recover the possession of the area.” Thus, the plaintiff had failed to establish that the defendants had encroached upon the land belonging to the plaintiff. The site plan relied upon by the plaintiff had not been proved on record. In the earlier litigation, plaintiff had admitted that Raj Kumar was owner of 6 marlas of land comprised in Khasra No.145. The case of the defendants is that they were in possession of the said 6 marlas of land belonging to them bearing Khasra No.145. In order to R.S.A.No. 1716 of 2009 (O&M) 7 establish their ownership and possession, defendants had placed on record a copy of the jamabandi. In these circumstances, the suit of the plaintiff had been rightly dismissed by the Courts below. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 18, 2009 anita