RSA No.3652 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3652 of 2010 (O & M) Date of Decision: 21.03.2011. Sucha Singh ……Appellant Versus The Punjab State and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Jaideep Verma, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.10738-C of 2010 Allowed as prayed for. Main Appeal. Sucha Singh, who is son and legal representative of original plaintiff Dharam Singh since deceased, has filed the instant second appeal, having remained unsuccessful in both the Courts below. Dharam Singh filed suit against respondents/defendants alleging that part of land measuring 2 kanals 18 marlas comprised of RSA No.3652 of 2010 (O & M) - 2 - khasra No.36//5/3/2 was acquired by the defendants for making ramp for bridge. Plaintiff previously filed suit alleging that the defendants had covered the entire land measuring 2 kanals 18 marlas for making the ramp, although only part of it was acquired. The said suit was decreed. During pendency of the said suit, the defendants illegally encroached upon 10 marlas land of the plaintiff and made the ramp. Local commissioner appointed in the previous suit found encroachment on 10 marlas land of the plaintiff by the defendants. Accordingly, plaintiff filed the instant suit claiming recovery of Rs.34000/- as damages at the rate of 1000/- per month for unauthorized use and occupation of the said 10 marlas land. Defendants admitted that out of land measuring 2 kanals 18 marlas of khasra No.36//5/3/2, plaintiff is owner in possession of 1 kanal 6 marlas land. Defendants denied having encroached upon any part of the plaintiff’s land. Plaintiff is in possession of unacquired land. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Ropar vide judgment and decree dated 20.08.2007 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff through his legal representative has been dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Ropar vide judgment and decree dated 16.01.2010. Feeling aggrieved, plaintiff’s legal representative has filed the instant second appeal. RSA No.3652 of 2010 (O & M) - 3 - I have heard learned counsel for the appellant and perused the case file. The plaintiff has miserably failed to prove that defendants have encroached upon any unacquired land of the plaintiff. Plaintiff’s attorney Sucha Singh (present appellant) appeared in the witness box and at that time, Dharam Singh himself was alive as admitted by Sucha Singh. However, Dharam Singh did not appear in the witness box and, therefore, adverse inference has been rightly drawn against the plaintiff. This adverse inference assumes significance because Sucha Singh, who appeared as attorney of original plaintiff Dharam Singh, expressed ignorance about the material facts. Case of the plaintiff is based on demarcation report made by local commissioner allegedly appointed in the previous suit. However, Sucha Singh stated in cross-examination that he did not know if local commissioner was appointed in the previous suit and if the local commissioner submitted report that plaintiff was still in possession of 16 marlas land. Thus Sucha Singh, who appeared in the witness box, expressed ignorance about the report made by the local commissioner whereas the plaintiff himself did not step into the witness box. Similarly, Janak Singh PW did not know how much land of plaintiff was acquired and how much compensation was paid to the plaintiff. Bhajan Singh PW also did not know about the measurement of the ramp in question. From oral evidence of the plaintiff, alleged encroachment on plaintiff’s land by defendants is not proved. RSA No.3652 of 2010 (O & M) - 4 - Learned counsel for the appellant vehemently referred to the demarcation report made in the previous suit. However, the person, who made the said demarcation report, has not been examined as witness in the instant case. The said report was not made in the instant case and is, therefore, not per se admissible in evidence in this case. On the contrary, Sucha Singh, who tried to prove the said report, did not even know that local commissioner had been appointed in the previous suit. Consequently, the said report is not proved. In addition to the aforesaid, it was the case of the plaintiff in the previous suit that defendants had encroached upon the entire land of the plaintiff, although only part of the land had been acquired. Thus alleged encroachment was pleaded in the previous suit also, but in that suit, plaintiff was held to be owner in possession of 1 kanal 6 marlas unacquired land. It would also depict that there was no encroachment by the defendants on unacquired land of the plaintiff. The plea of the plaintiff that encroachment pleaded in the instant suit was made during the pendency of the previous suit cannot be accepted because even in the previous suit, the plaintiff pleaded that his entire land measuring 2 kanals 18 marlas had been covered by the defendants. Consequently, it cannot be said that encroachment pleaded in the instant suit was made during pendency of the previous suit. It is also significant to notice that in the instant suit, the plaintiff has not even claimed possession of 10 marlas land which had been allegedly encroached upon by the defendants. It would again depict RSA No.3652 of 2010 (O & M) - 5 - that there is no encroachment by the defendants on the plaintiff’s land. For the reasons aforesaid, I find that plaintiff has miserably failed to prove that defendants have made encroachment on 10 marlas land of the plaintiff. Concurrent finding recorded by the Courts below to this effect is fully justified by the evidence on record and does not suffer from any illegality or perversity nor it is based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus bereft of any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 21.03.2011 A.kaundal