RSA No.187 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.187 of 2008(O&M) Date of decision: 22.1.2009 Zile Singh ......Appellant Versus Gram Panchayat of village Badarpur ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Radhey Shyam Kamboj, Advocate for the appellant. * * * Rakesh Kumar Garg, J. This is plaintiff’s second appeal challenging the judgment and decrees of the Courts below dismissing his suit for mandatory injunction directing the defendants to fill the Nali between point E to F and to make the portion marked by letters DEF as shown in red colour in the site plan to its previous position at their own expenses with a consequential relief of permanent injunction restraining the defendants from constructing pucca Nali between point E to F by encroaching upon illegally and forcibly the portion marked by letters DEF as shown in red colour in the site plan of the property situated at village Badarpur, Tehsil Indri, District Karnal. In the suit, as per the plaint, the plaintiff has pleaded that he is the owner in possession of shop (demolished)(as fully detailed in para No.2 of the plaint) measuring 26’-0” x 10’-0” situated in village Bardar, Tehsil Indri, District Karnal as shown by letters ABCD in the site plan. His possession over the said shop is peaceful, uninterrupted and continuous since the time of his forefathers, being the absolute owner thereof. The plaintiff had constructed the shop over the site marked by letters ABCD on its Eastern side while the portion lying vacant on the Western side was RSA No.187 of 2008(O&M) 2 being used as Verandah by him. The plaintiff had demolished the old construction of the shop in order to raise construction of the shop over the site in question. Towards South and West of the site in dispute, there are Nalis for flowing of the dirty water of the inhabitants of the village as shown in the attached site plan which are just adjacent to the boundary of the site. Due to party faction in the village, the defendants taking undue advantage of the demolition of the shop are out to construct the Nali from point E to F instead of its existence at point D. For the purpose, the defendants in the absence of the plaintiff have dug out the Nali between point E to F by removing the floor from the portion of the property marked by letters DEF shown in red clour in the site plan attached and are bent upon to encroach upon the portion shown in red colour by adopting illegal and forcible means. Upon notice, the suit was resisted by defendant No.1 by taking various preliminary objections therein. On merits, it was contended that the plaintiff with an intention to grab the land under street, removed the Nali, which was reconstructed by the Gram Panchayat with the intervention of the village elders. The present suit has been filed by the plaintiff with the intention to remove the said Nali again and to grab the street land for the sake of his personal ego which is totally illegal and without any right. In fact, there is already a Nali in existence from point E to F. With these submissions, the defendants prayed for dismissal of the suit of the plaintiff. Defendants No.2 to 6 adopted the written statement filed on behalf of defendant No.1. After perusing the evidence on record and hearing the counsel for the parties, the trial Court dismissed the suit of the plaintiff-appellant. The appeal filed by the plaintiff before the Lower Appellate Court was also dismissed. RSA No.187 of 2008(O&M) 3 Feeling not satisfied with the judgment and decrees of the Courts below, the plaintiff has filed the instant appeal. Learned counsel for the appellant has vehemently argued that the Courts below have misinterpreted the evidence on record which has resulted into the perversity in the findings of the Courts below and therefore, the same are liable to be set aside and the plaintiff entitled to the decree of the suit. On the other hand, learned counsel for the respondents has argued that the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the plaintiff has failed to prove his case that the Gram Panchayat has constructed the Nali at wrong alignment and that the Gram Panchayat has encroached upon the property of the plaintiff which is essentially a finding of fact. Thus, there being no merit in this appeal, the same is liable to be set aside. I have heard learned counsel for the parties and perused the record of the case. It was for the plaintiff-appellant to prove that the Nali that has been constructed from point E to F, as per the site plan of the plaintiff Ex.P1, in fact originally existed from point A to D to E. In this regard, there is no other evidence adduced by the plaintiff except his oral statement. The plaintiff-appellant has failed to produce any witness in support of his allegation that the Gram Panchayat has constructed the Nali at wrong alignment originally passing from point E to D abutting the plot of the shop whereupon the defendant-Gram Panchayat has encroached upon the property of the plaintiff. The plaintiff has also failed to prove any Aks Zijra in support of his contention. Onus to prove his assertion was upon the plaintiff; however, he has failed to discharge the said onus. None of the respectables has come forward in favour of the plaintiff to support his case that the old drain in existence was passing from point E to D as per the site RSA No.187 of 2008(O&M) 4 plan Ex.P1. So, in the absence of any evidence, it cannot be said that in fact their existed (Nali) drain as alleged by the plaintiff from point E to D. Even the draftsman, who visited the spot, examined by the plaintiff as PW- 2 has not supported the case of the plaintiff. The report of the Local Commissioner as well as the site plan prepared by the Local Commissioner Exh.P-2 and P-5 only proves that the drain in existence at the spot was a newly constructed drain from point E to F as per the site plan Ex.P1. Merely because the Nali (drain) was newly constructed is no ground to arrive at the conclusion that in fact a new Nali (drain) has been constructed at some other place from the old constructed drain. On the other hand, the stand of the Gram Panchayat stands proved from the statements of DW-1 to DW3 who have proved in their statements on oath that the plaintiff in order to grab the land of Gram Panchayat demolished the pucca drain already in existence and later on the same place, a new drain was constructed. Thus, no illegality or infirmity can be found in the judgment and decrees of the Courts below. No substantial question of law arises. Dismissed. January 22, 2009 (RAKESH KUMAR GARG) ps JUDGE