Regular Second Appeal No. 800 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 800 of 2009. (O&M) Date of Decision: 18.2.2009 *** Raj Kumar & Ors. .. Appellants VS. Amar Singh .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Ms. Sumanjit Kaur, Advocate for the appellants. *** ARVIND KUMAR, J. The appellant-defendants are aggrieved with the judgment and decree dated 17.11.2008 passed by the learned First Appellate Court below by dint of which the judgment and decree dated 24.1.2006 passed by the learned Trial Court, dismissing the suit of the respondent-plaintiff has been set aside and the suit has been decreed. The brief facts of the case are that plaintiff filed a suit against the defendants for restraining them from interfering in his possession over the suit land comprised in khatoni No. 17/27, khasra No. 18/3, 7/2, 8. According to the plaintiff the defendants whose land is in khasra No. 18//7/1, adjoining to his fields, have encroached upon 2 marlas of his land and have also threatened to cut the trees standing thereupon, which were planted by the plaintiff. The plaintiff also sought consequential relief of possession of said 2 marlas of land from the defendants. The stand of the defendants, on the other hand, was that the said trees are standing on their land and it is the plaintiff who has encroached upon their land and now he wants to grab the trees under the garb of the instant suit. After contest, the learned Trial Court non-suited the plaintiff, Regular Second Appeal No. 800 of 2009 2 but on an appeal, as said above, the learned Appellate Court below granted the relief sought for by the plaintiff and decreed his suit. Hence this regular second appeal by the defendants. I have heard learned counsel for the appellants and have gone through the paper-book carefully. From the perusal of record it reveals that there is no dispute to the fact that the land of the parties is adjacent to each other and both the parties stake their claim on the standing trees by levelling allegations and counter-allegations against each other of having committed intrusion on their land. Both the parties led their respective evidence in support of their claim. The plaintiff relied upon the report of local commissioner appointed by the Assistant Collector IInd Grade, Jagadhari who demarcated the spot and found the defendants in unauthorised possession of khasra No. 18//7/2, 136 and 151 to the extent of 2 marlas and 4 marlas respectively. However, the learned Trial Court discarded the same by observing that the demarcation was not conducted as per rules and instructions of the Financial Commissioner since no proper and pucca points on the different sides were taken and was prepared just by taking the points, as suggested by the people at the spot, that too at the back of the defendants. It was further observed by the learned Trial Court that the plaintiff had also not made any prayer for the appointment of the local commission in the suit and has failed to prove his title regarding the trees in question and that the defendants have made any encroachment upon any part of his land. Likewise, the learned Trial Court disbelieved the testimony of DW4 Ramji Lal Field Kanungo who allegedly found encroachment by the plaintiff upon gair mumkin rasta to the extent of 2 ft. by observing that since the Gram Panchayat has not been made party, the said issue cannot be adjudicated upon and the defendants have not got the land in question demarcated to establish the existing state of affairs. In totality, the learned Trial Court, thus, disbelieved both the reports of the revenue officials, who demarcated the spot. A perusal of both the judgments passed by the Courts below reveals that the defendants in their evidence utterly failed to substantiate their plea of having planted the trees since they could not tell about the variety of trees, as to when they Regular Second Appeal No. 800 of 2009 3 planted the same and to whom the logs were sold by them. The report Ex.P3 of PW3 Ajmer Singh, Sadar Kanoogo was discarded by the learned Trial Court, but was relied upon by the the learned First Appellate Court below by returning the following observations: “22. The trial court discarded the report of the Local Commissioner (Ex.P3) as proved by PW3 on the ground that it was not conducted as per the instructions of Finance Commissioner and no pucca points were taken for demarcation and same was prepared just on the saying of the people present at the spot and further that it was prepared at the back of the defendants. Learned Lower Court observed that no evidence has appeared on record that defendants were present at the spot or they were intimated by the Local Commissioner. Learned Lower court also observed that PW1 in the cross- examination admitted that demarcation of khasra no.7/1 was not done in proper manner and does not bear his signature. 23. The trial court made wrong observation that there was no evidence that defendants were present at the spot at the time of demarcation and they were intimated by the Local Commissioner. PW3 categorically in his report Ex.P3 mentioned that notice of the said nishandehi was sent to the concerned parties through Chowkidar of the village and on oath he also reiterated the fact that notice of nishandehi was given to the concerned parties. His said statement has remained unchallenged on record. No cross-examination was conducted on this aspect. Any fact which is asserted by parties not put to cross examination, amounts to be admitted. Likewise PW3 in the cross-examination stated that Satpal, Amar Nath etc. (defendants) were present at the spot, but they have refused to put their signature on the attendance sheet. Meaning thereby they were present at the spot when the demarcation conducted. PW1 plaintiff also stated that defendants were present at the spot, but they refused to put their signatures. No suggestion Regular Second Appeal No. 800 of 2009 4 was given to PW3 that he in connivance with the plaintiff got prepared the wrong nishandeshi report Ex.P3. He is an independent witness and there appears no reason for this court to discard his demarcation report. 24. The demarcation report on perusal shows that Local Commissioner had given in detail as to how he had conducted the nishandehi from killa line by drawing the pucca points of Khasra Numbers. Admittedly, there was no pucca point as approved by the Government. Therefore, same could not taken by the Local Commissioner and in view of it, he had taken the approved killa line and by taking the agreed killa number, he took three pucca points and prepared the report. DW2 in the cross examination had also stated that he wanted that killa line should be adopted while preparing the report, when he had requested to prepare the nishandehi of his field. PW2 in the cross-examination stated that when there is no pucca point, in that event, the pucca point of the other adjoining field is taken by taking measurements. His said statement has not been challenged at all. Thus, having perused the report of the Local Commissioner, it shows that same has been prepared in accordance with instructions of Finance Commissioner. Same is considered. The report shows that defendants have encroached upon the land of the plaintiff bearing khasra no.18//7/2 to the extent of two marlas. The fact of encroachment has also been mentioned in the subsequent report. Where in encroachment on the land of the plaintif bearing khasra No.18//7/2 has been mentioned, though stated to be negligible.” From the above, it is abundantly clear that the learned First Appellate Court below precisely considered the report Ex.P3 and held the appellants in unauthorized possession of the land of the plaintiff comprised in khasra No. 18//7/2. It is apt to mention here that during the pendency of the appeal, Naib Tehsildar was appointed as Local Commissioner, who submitted his Regular Second Appeal No. 800 of 2009 5 report dated 16.2.2008. Altough the said report was not accepted by the learned First Appellate Court being not in accordance with the reference order dated 30.1.2008 vide which he was asked to report about situation of the trees, number of trees and encroachment on the land, but therein also there is a report regarding encroachment upon the land of the plaintiff, though stated to be negligible. The learned Appellate Court below rightly held the defendants in unauthorized occupation of the land of the plaintiff over khasra No. 18//7/2 and thus, rightly decreed the suit of plaintiff for possession to the extent of two marlas while restraining them from removing the trees standing over the said khasra numbers. No illegality or perversity could be found in the approach of the learned appellate Court below while reversing the judgment of the learned trial court. Nothing has been shown to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal, is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE February 18,2009 Jiten