IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2807 of 1988 Date of decision: 30th November, 2010 Suraj Mal … Appellant Versus Bihari Lal and another … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ankur Soni, Advocate for Mr. Amit Jain, Advocate for the appellant. Mr. Rajat Panjeta, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Bihari Lal and Sewa Ram plaintiff-respondents filed a suit for permanent injunction restraining the defendant-appellant from encroaching the plot in dispute of which by virtue of a decree dated 7th September, 1984 passed by the Court of Sub Judge, Gurgaon they were owners of the property, the description whereof was given in para No.1 of the plaint. It was stated that the defendant-appellant was a strong-headed person having no respect in the law and was constructing a house on the plot adjacent to the plot of the plaintiff-respondents and in this way, he was making an attempt to encroach upon a part of the plot of plaintiff- respondents. It was further stated that defendant-appellant was out to dig a foundation over a portion of the plot of plaintiff-respondents. Defendant-appellant filed a written statement and stated therein that the boundaries had not been correctly mentioned and the decree obtained by the plaintiff-respondents from the Civil Court was not Regular Second Appeal No.2807 of 1988 binding upon him. He further stated that he was in possession of the plot in dispute, in which a residential Chappar of the plaintiff-respondents existed since the month of July, 1984. An additional plea was raised that the report of the Local Commissioner dated 14th January, 1985 was wrong and incorrect. The trial Court formulated following issues: “1. Whether the plaintiffs are the owners in possession of the suit property mentioned in para No.1 of the plaint? OPP 2. Whether the defendant has threatened to encroach upon the suit property? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is malicious and is result of enmity, as alleged, if so its effect? OPD 5. Relief.” Plaintiff-respondent No.2 Sewa Ram appeared as PW-1 and stated that he, along with Bihari Lal plaintiff-respondent No.1, had purchased the land in dispute from Bhag Mal and Rohtash. He also proved the site plan Ex.P1. It was further stated that the temporary Chappar was constructed by the defendant-appellant during the pendency of the stay order. He also proved site plan Ex.P2, which was a part of the record of Civil Court, which had earlier issued a decree in favour of the plaintiff-respondents. Counsel for the defendant before the trial Court raised an argument that the decree-sheet dated 7th September, 1984 was not sufficient to establish the ownership and possession of the plaintiff- respondents over the suit property. Learned counsel also raised an argument that from the decree-sheet Ex.P3 it was not evident that the plaintiffs were owner of the suit property. 2 Regular Second Appeal No.2807 of 1988 The trial Court returned a finding that the plaintiffs were not owner of the suit property and dismissed the suit. Aggrieved against the same, plaintiff-respondents filed an appeal. The lower appellate Court relied upon the report of Local Commissioner, wherein it was stated that the wall shown as ‘AB’ was constructed about 15 days before the visit of the Local Commissioner and the Chappar was constructed about 2-3 days before the visit. The appellate Court below further held that the boundaries and dimensions given in the site plan are same as mentioned in the site plan Ex.P1. The appellate Court further held that admittedly, the defendant was not owner of the plot in question and dimensions of the plot had not been proved by the defendant, however, as per the site plan Ex.P1, it was evident that the defendant had encroached upon the suit property. Counsel for the defendant-appellant, during the course of arguments, has stated that the question of law, which arises for consideration of this Court, is as to whether the plaintiff-respondents proved themselves to be the owner in possession of the plot in dispute. Learned counsel has relied upon a stray line in the cross-examination of Sewa Ram PW-1, wherein he stated that he was not aware of the fact as to whether the price of the plot was paid by his father to Bhag Mal, i.e. father of Rohtash, or not. This fact will pale into insignificance, especially when the plaintiff-respondents had obtained a decree against Rohtash. Counsel for the plaintiff-respondents has stated that during the pendency of the appeal, a compromise has been arrived at between the parties and no dispute exists, as on today. Counsel for the defendant-appellant has stated that he is not aware of the factum of compromise. Be that as it may, the very fact that the plaintiff-respondents have proved their title over the suit property on the basis of the decree 3 Regular Second Appeal No.2807 of 1988 passed by the Civil Court and the site plan Ex.P1 tallied with site plan Ex.P2, in pursuance of which earlier Civil Court passed decree, is sufficient to hold that the lower appellate Court has given a finding of fact, which is based on the evidence led by the parties. This Court will not do re-appreciation or re-appraisal of the evidence until the evidence has been misread. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 30, 2010 rps 4