R.S.A. No.126 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.126 of 2010 DATE OF DECISION: 5 th APRIL, 2011 Attar Singh .... Appellant Versus Mani Ram .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Rajeshwar Singh, Advocate for the appellant. Mr. K. S. Dhanora, Advocate for the respondent. * * * * L.N. MITTAL, J. (ORAL) Plaintiff Attar Singh having been unsuccessful in both the courts below has filed the instant second appeal. Plaintiff filed suit against defendant-respondent Mani Ram for possession of suit land alleging that the plaintiff purchased two plots i.e. plot measuring 10 marlas comprised of Khasra No.53//7/1/1/2 vide sale deed dated 23.10.2001 and another plot measuring 5 marlas out of Khasra Nos.53//7/1 and 6/2/2 vide sale deed dated 29.01.1979. However, about a year before the filing of the suit, defendant illegally occupied two marlas land out of the aforesaid plots of the plaintiff. Accordingly, plaintiff sought possession of said two marlas land in suit. The defendant broadly denied the plaint allegations. Defendant denied having occupied any part of plaintiff's land. The defendant alleged that he purchased 10 marlas plot comprised of Khasra No.53//7/1 vide sale deed R.S.A. No.126 of 2010 -2- dated 24.08.1978 and constructed his house therein in the year 1978 itself. The defendant is not in possession of any part of the plaintiff's land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 19.03.2008 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 12.09.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file including file of the trial court. Learned counsel for the appellant vehemently contended that report of the Local Commissioner depicts that suit land is part of Killa No.53//7/1/1/2 owned by the plaintiff and, therefore, the suit deserves to be decreed. The contention is completely misconceived and devoid of merit. Perusal of report of the Local Commissioner coupled with site plan prepared by him leaves no room for doubt that the defendant has not encroached upon any land of the plaintiff. On the other hand, according to report of the Local Commissioner, house of the plaintiff exists in his land and some part of his land lying on West of his house is lying vacant. Local Commissioner has nowhere reported that defendant has encroached upon any part of the land of the plaintiff. Concurrent finding recorded by the courts below that defendant has not encroached upon any part of the land of the plaintiff, therefore, does not suffer from illegality or perversity nor it is based on misreading or mis-appreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises R.S.A. No.126 of 2010 -3- for adjudication in this second appeal. The plaintiff has also not alleged as to which two marlas land out of his plots has been encroached upon by the defendant. In the absence of description of the alleged encroached land also, no decree can be passed, because any such decree would be inexecutable. I may hasten to add that plaintiff has not proved that defendant has encroached upon any land of the plaintiff. Faced with the aforesaid situation, learned counsel for the appellant contended that inspite of interim order dated 29.11.2010 passed by this Court, defendant has now raised construction over the land of the plaintiff. This contention rather falsifies the whole claim of the plaintiff that defendant had encroached upon any part of land of the plaintiff prior to filing of the suit. However, if the defendant has now encroached upon any part of the plaintiff's land, no decree for the same can be passed in this second appeal in absence of any pleadings or evidence. There is no pleading or evidence to substantiate the aforesaid contention raised by counsel for the appellant and the same cannot be adjudicated upon in this second appeal. For the reasons aforesaid, I find no merit in the instant second appeal. Accordingly the appeal is dismissed. (L. N. MITTAL) JUDGE 5th April, 2011 'raj'