RSA No.3476 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3476 of 2008 Date of Decision:03.11.2008 Mohinder Singh & anr. ....appellants Versus Birju & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Adarsh Jain, Advocate for the appellants **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiffs for possession with consequential relief of permanent injunction restraining the defendants from further encroaching upon and raising any sort of construction over the suit land in any manner whatsoever, has been decreed. Briefly stated, the facts of the case are that the plaintiffs are owners of land measuring 6 kanal 9 marla comprised in Khewat No. 47, Khata No. 650, Rect. No. 43, killa No. 6 (3-18) and 10 (2-11), situated within the revenue estate of village Badshahpur Tenthar. Adjacent to said land, is the land of the defendants comprised in Rect. No. 43 killa No. 11. The claim of the plaintiffs is that defendants have made encroachment over a part of their land shown by letters ABCD in the site plan Ex. P1 annexed with the plaint and have started raising construction thereon. Their request to remove the encroachment fell on deaf ears. With these averments, plaintiffs brought the present suit to seek a decree for possession of the encroached area by demolishing the construction raised RSA No.3476 of 2008 2 thereon. They also sought a decree for perpetual injunction to restrain the defendants from making any further encroachment and raising any sort of construction over the encroached area. Defendants admitted encroachment over a part of land of the plaintiffs comprised in Rect. No. 43 killa No. 10 and claimed their title over said encroached area by way of adverse possession and denied encroachment over any other area of the plaintiff. In view of the pleadings of the parties two questions arose for determination of the Court. The first question was whether encroachment has been made by the defendants only over a part of land comprised in killa No.10 or encroachment has been made over the land comprised in killa No.6 also as alleged by the plaintiffs and shown by them by letters ABCD in site plan Ex.P-1. The second question for determination in this case was if the encroachment has been made by the defendants only over a part of land comprised in killa No.10 as admitted by them. Whether they have acquired title over said land by way of adverse possession. Since the question regarding extent of encroachment could be decided only by way of demarcation, the trial Court appointed Halqa Girdawar as a Local Commissioner to demarcate the lands of both the parties. The Local Commissioner visited the spot and carried out the demarcation. On demarcation he found that only a part of land to the extent of 15 marlas comprised in killa No.10 had been encroached upon by the defendants and no part of land comprised in killa No.6 was found encroached. To prove the adverse possession, appellants placed on record the testimony of one Rajinder Singh as DW2 and also relied upon one of the defendants Mahender Singh. The defendants also placed on record a copy of site plan of both the suit lands Ex.D-1. In the said site RSA No.3476 of 2008 3 plan defendants have not shown their possession over any part of land comprised in killa No.10. On the basis of this evidence, the trial Court held that the plaintiffs are owners in possession of Khasra No.6 and 10 of Rect.No.43 and are entitled to a decree of possession in respect of land in question and the construction which has been raised by the defendants is illegal and the same is liable to be demolished. Issue No.2-A was decided against the appellants holding that the defendant have not been able to prove that they have become the owners of the land in dispute by way of adverse possession. The trial Court vide its judgment and decree dated 01.03.2008 decreed the suit of the plaintiffs-respondents. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendants filed an appeal in the Lower Appellate Court. While dismissing the appeal filed by the defendants, the Lower Appellate Court found that the trial Court has decreed the entire claim of the plaintiffs whereas from the evidence on the file, it is proved that only a part of land comprised in killa No.10 owned by the plaintiffs as shown by the Local Commissioner in his report Ex.P-4 has been encroached upon by the defendants and no part of land comprised in killa No.6 has been encroached upon by the defendants and further it is proved from the report of the Local Commissioner that the encroached area comprised in killa No10 is much less than shown by the plaintiffs in Ex.P-1. Therefore, the trial Court has committed an error in decreeing the entire claim of the plaintiffs. Resultantly, the appeal was partly allowed and the judgment and decree of the trial Court was modified to the extent that the suit of the plaintiffs shall be deemed to have been decreed only with regard to the part of land comprised in killa No.10 as shown by the Local Commissioner in his report Ex.P-4 which shall form part of the decree and the suit with regard to RSA No.3476 of 2008 4 remaining land shall deem to have been dismissed. In the present appeal, counsel for the defendants while challenging the judgment and decree of the Lower Appellate Court has vehemently argued that the report of the Local Commissioner cannot be relied upon as the same has not been proved in accordance with the law as the same has been tendered in evidence by the plaintiff and the Local Commissioner has not been examined to prove his report. It is further the case of the appellant that the appellant has also filed objections to the report of the Local Commissioner and therefore his report can be admissible in evidence only after he is examined in the Court. Learned counsel has placed reliance upon a judgment of Andhra Pradesh High Court in the case of Vaddee Rajeswaramma versus Dr.V.L.Narasimha Charyulu 1998(2) R.C.R.(Civil) 617. Reliance has also been placed on a judgment of this Court in Rajinder Parshad versus Raj Singh 1995(3)P.L.R. 465. I have heard learned counsel for the appellants. However, I find no merit in the contentions raised by the learned counsel for the appellants. From the pleadings of the appellants, it is clearly established that they have admitted encroachment of the land of the plaintiff- respondent comprised in khasra No.10 of Rect. No.43. The report of the Local Commissioner also shows that the encroached area comprised in killa No.10 is much less than shown by the plaintiffs in the site plan Ex.P-1. The plaintiff-respodnents have shown the encroached area marked as ABCD which comprised killa No.10 and killa No.6 of Rect No.43. As per the report of the Local Commissioner, no part of land comprised in killa No.6 has been encroached upon by the appellants and in fact the Lower Appellate Court has decreed the suit of the plaintiff-respondent only to the extent of the land comprised in killa No.10 as shown by the Local RSA No.3476 of 2008 5 Commissioner in his report Ex.P-4, which is also admitted by the appellants in their pleadings. It is the case of the appellants themselves that a part of land comprised in khasra No.10 owned by the plaintiffs has been encroached by them and they have become the owner of this land by way of adverse possession. The findings of the Courts below with regard to the claim of the appellant on the basis of adverse possession have not found favour and the counsel for the appellants has not challenged these findings regarding adverse possession in this appeal. In view of these facts, the arguments raised by the learned counsel for the appellants is misconceived as it is well settled that admitted facts need not be proved. Without going into the question of admissibility of the report of the Local Commissioner Ex.P-4 and its effect in the case, in my opinion, the suit of the plaintiff- respondent has been decreed rightly on the basis of the admission of the appellants as undisputedly they have admitted that they are in possession of a part of land comprised of khasra No.10 owned by the plaintiffs. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Appeal is dismissed with costs which are assessed at Rs.1000/- (RAKESH KUMAR GARG) JUDGE 03.11.2008 neenu