SAO No. 71 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH SAO No. 71 of 2011 Date of Decision: 21.10.2011 *** Brij Mohan .. Appellant VS. Putul Devi .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Ranjit Saini, Advocate for the appellant. *** ARVIND KUMAR, J. The appellant was one of the defendants in the suit filed by respondent Putul Devi, seeking possession and damages in respect of the land measuring 2-1/2 marlas. It was her case that she purchased the suit land comprised in khasra No.34 vide registered sale deed dated 8.6.2005 for a consideration of Rs.75000/-. However, the defendants who have no concern with the same have raised unauthorized construction thereupon and refused to remove the same. Hence, the plaintiff sought possession of the same and also claimed damages for the use and occupation of the land in dispute. The defendants contested the suit and took the stand that the plaintiff is not the owner of the suit land and the vendor of the plaintiff was not competent to transfer the same and hence, the sale deed, if any, is not binding upon them. They further asserted the suit land to be their ancestral property. The learned trial Court, on the basis of evidence on record, conditionally decreed the suit and directed the plaintiff to get the land in question demarcated at her own expenses with the order of the Court and if any construction of the defendant is found in khasra No.34 then the same was ordered to be demolished by warrants of demolition. On an appeal preferred by the defendants, the learned appellate Court below set aside the judgment and decree of the learned trial Court and SAO No. 71 of 2011 2 remanded the case to the learned trial Court with the directions and observations, as under:- “16. The learned trial court while deciding the suit left it oepn that demarcation will be got done by plaintiff at her own expenses with the order of the court and further held that if any portion of khasra No.34 lies in the property of the defendants, that will be liable to be demolished by warrants of demolition. The finding given by trial court is not sustainable in the eyes of law, because it is for the trial court to decide the dispute between the parties and not it left to the parties as stated in the relief clause as discussed above. It was the duty of the ld. Trial court to get appoint the local commissioner for the purposes of demarcation of area of Khasra No.34 and 35 and then afterwards gave its findings and only then the suit can be properly decided, but it left open the controversy to the parties again. So, in these circumstances, the findings arrived at by learned trial court qua issue No.1, wherein it left the point of demarcation open to the parties are set aside. As issues No.1 and 2 are the main issues and whole of the case is depending on it, so impugned judgment and decree passed by learned trial Court is set aside and the case is remanded back to learned trial court to appoint Revenue Official as local Commissioner to get demarcate the area of Khasra No.34 and 35 and then afterwords(?) decide the matter afresh in accordance with law after affording the parties the opportunity to give objection if any qua the report of Local Commissioner and to lead evidence qua that aspect.....” Dis-satisfied with the same, the present regular second appeal has been preferred by the defendant Brij Mohan. SAO No. 71 of 2011 3 Heard. From the perusal of the judgment passed by the learned trial Court it is evident that the plaintiff purchased the land in dispute from its previous owner Jaspal Singh and the dispute was that the same falls in khasra No.34 or 35, belonging to the defendants. The demarcation report submitted by the plaintiff was objected by them. However, the defendant while appearing in the witness box also did not raise any objection to get the suit land demarcated to know as to whether the same falls within khasra No.34 or 35. The appellant also deposed in his statement before the Court about his removing encroachment, if any, found in khasra No.34, after the demarcation. Relying upon the same, the learned trial Court decided to get the land demarcated, however, it left the lis between the parties open to them and to decide at their own by getting the land in dispute demarcated. It ignored the fact that the demarcation report earlier produced on record by the plaintiff was not accepted by the defendants and thus, no useful purpose would have been served by again asking the plaintiff to get the land demarcated at her own. In this view of the matter, the learned appellate Court below rightly remanded the case to the learned trial Court with a direction to appoint some Revenue Officer as Local Commissioner for demarcation of the suit property, so that the lis between the parties could be properly and effectively adjudicated upon. Finding no merits in the instant appeal, the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE October 21,2011 Jiten