R.S.A.No. 4054 of 2010(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4054 of 2010(O&M) Date of decision:23.5.2011 The Executive Engineer, PWD (B&R) Sonepat and another ......Appellants Versus Dharambir .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Deepak Jindal, DAG, Haryana Mr.Sudhir Kumar Hooda, Advocate for respondent. **** SABINA, J. The plaintiff had filed a suit for permanent injunction claiming that he was owner in possession of the suit land bearing Killa No.374. The land in dispute was described as gair mumkin gitwar and had been purchased by the plaintiff vide sale deed dated 6.9.2002. Mutation was duly sanctioned in favour of the plaintiff on the basis of the sale deed. Plaintiff had constructed some shops over the suit property. On the Southern side of the gitwar, there was a road in a damaged condition. The defendants were going to R.S.A.No. 4054 of 2010(O&M) 2 reconstruct the said metalled road. The defendants had encroached upon the plot belonging to the plaintiff. The defendants, in their written statement, admitted the factum of construction of shops by the plaintiff over the plot in dispute. It was averred that on the Southern side of the shops, a road had been constructed in the year 1962, after conducting demarcation. The defendants were merely going to reconstruct the said road at the existing plot. On the pleadings of the parties, following issues were framed by the trial Court:- 1.Whether the defendants encroached upon the suit land as described in para 1 of the plaint ? OPP 2. Whether the plaintiff is entitled for the injunction as prayed for ? OPP 3. Whether the plaintiff has no cause of action to file the present suit ? OPD 4. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 5. Relief. The trial Court vide judgment and decree dated 18.4.2009 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the Additional District Judge vide judgment and decree dated 8.6.2010 partly allowed the appeal and set aside the judgment and decree passed by the trial Court with a direction to the defendants to pay market value of the disputed/ encroached portion of the suit land in terms of the report dated 6.6.2004, Ex.P-3, submitted by the Local Commissioner, to the R.S.A.No. 4054 of 2010(O&M) 3 plaintiff. Hence, the present appeal by the defendants. Learned State counsel has submitted that the road in question was constructed in the year 1962, whereas, the plaintiff had purchased the suit property in the year 2002. Hence, the suit filed by the plaintiff was liable to be dismissed. Learned counsel for the respondent, on the other hand, has submitted that the land purchased by the plaintiff had been encroached by the defendants without payment of compensation and hence, the present appeal was liable to be dismissed. The substantial question of law that arises in this case is "whether judgment and decree passed by the learned first Appellate Court are contrary to the evidence on record and hence, perverse ?" The case of the plaintiff is that the defendants had encroached upon the land purchased by him. Admittedly, the plaintiff had purchased the suit property vide sale deed dated 6.9.2002. The case of the defendants is that the road had been constructed in the year 1962, whereas, the plaintiff, in his cross-examination, deposed that the road was constructed in the year 1966. Thus, the road was already in existence at the time when the plaintiff had purchased the suit property. The question, as to whether any compensation was to be paid or not, was liable to be raised by the previous owner at the time of construction of the road. The plaintiff could not raise any objection qua encroachment because at the time when he had purchased the suit property in the year 2002, the road was already in existence. The plaintiff at the time of purchase of the land should have inspected the spot. In these circumstances, the report submitted by the Local Commissioner Ex.P-3 loses its significance. R.S.A.No. 4054 of 2010(O&M) 4 Learned first Appellate Court, thus, while partly allowing the appeal, has given its findings contrary to the evidence on record and hence, the same are perverse. The substantial question of law that arises in this case stands answered accordingly. Hence, the present appeal is allowed. The impugned judgment and decree dated 8.6.2010 passed by the first Appellate Court are set aside and the judgment and decree dated 18.4.2009 passed by the trial Court are upheld. (SABINA) JUDGE May 23, 2011 anita