R. S. A. No. 1975 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1975 of 2010 Date of Decision : January 12, 2011 Surinder Singh .... Appellant Vs. Jag Ram and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Akshay Bhan, Advocate with Mr. Santosh Sharma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Surinder Singh – defendant no.1 is in second appeal. Respondents no.1 to 3 – plaintiffs were non-suited by the trial court, but their suit has been decreed by the lower appellate court. Respondents no.1 to 3 filed suit against appellant and proforma respondents no.4 to 6 alleging that plaintiffs are owners of suit land of killa nos.52//2/1/2 and 59//9/2, out of which defendants have encroached upon 01 kanal 13 marlas land and 03 kanals 18 marlas land respectively. It was so found on demarcation by retired Naib Tehsildar Damodar Dass Batra R. S. A. No. 1975 of 2010 2 appointed as Local Commissioner by the Assistant Collector for making demarcation. Accordingly, plaintiff sought possession of the said encroached land. Defendants inter alia pleaded that they have become owners of the suit land by adverse possession as their possession is open and hostile. It was also alleged that demarcation by Local Commissioner was done in the absence of defendants and consequently, the said report is false and illegal and not binding on the defendants. It was also alleged that defendants are in possession of the suit land since the time of their forefathers. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Mohindergarh, vide judgment and decree dated 12.02.2007, dismissed the plaintiffs' suit. However, first appeal preferred by plaintiffs has been allowed by learned Additional District Judge, Narnaul vide judgment and decree dated 21.12.2009 and thereby, suit filed by the plaintiffs stands decreed. Feeling aggrieved, defendant no.1 only has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. At the outset, it may be mentioned that Mangtu Ram – father of the plaintiffs and Nobat Ram – father of defendants no.3 and 4 were brothers. There was also earlier litigation between them. Nobat Ram had R. S. A. No. 1975 of 2010 3 constructed house by encroaching upon about 225 sq. yds. area of killa no. 52//2/1 of the plaintiffs. Compromise (Annexure P-9) was effected in the said suit, whereby Nobat Ram agreed to compensate the plaintiffs with equivalent area after getting demarcation. However, Nobat Ram or his successors i.e. defendants no.3 and 4 did not honour the said compromise dated 02.04.1993. On the contrary, it appears that as against encroachment of about 225 sq. yds. land (7½ marlas approximately) at that time, the defendants encroached upon more land of the plaintiffs. Defendants no.1 and 2 claimed to be purchasers from defendants no.3 and 4. However, the sale deeds, vide which defendants no.1 and 2 purchased land from defendants no.3 and 4, have not been produced in evidence. Consequently, defendants no.1 and 2 have no right, title or interest in the suit land nor they can be said to be bona fide purchasers thereof. Even otherwise, if defendants no.3 and 4 did not have any title in the suit land, they could not have transferred any better title therein to defendants no.1 and 2. The substantial question to be determined in the instant lis is as to whether land in question belonging to the plaintiffs has been encroached upon by the defendants. It is amply proved that the plaintiffs are owners of land in question. The dispute remains regarding encroachment thereof by the defendants. To prove encroachment, the plaintiffs have examined D. D. Batra (PW-3) – Naib Tehsildar, who had made demarcation at the spot. He has proved his demarcation report depicting that defendants have R. S. A. No. 1975 of 2010 4 encroached upon suit land i.e. 01 kanal 13 marlas land of killa no. 52//2/1/2 and 03 kanals 18 marlas land of killa no. 52//9/2. The said evidence regarding demarcation of plaintiffs' land and encroachment of suit land by defendants remains practically unrebutted and is, therefore, sufficient to prove the plaintiffs' case. Learned counsel for the appellant vehemently contended that demarcation by D. D. Batra (PW-3) was made in the absence of defendants and therefore, cannot be relied on. The contention cannot be accepted. The question, as to what probative value is to be attached to demarcation report made in the absence of opposite party, depends on facts and circumstances of each case. In the instant case, the plaintiffs in the plaint itself pleaded about the demarcation made by D. D. Batra. If the defendants were not satisfied with the said demarcation, they were at liberty to get the suit land demarcated once again. However, defendants did not do so. Consequently, there is no material on record to doubt, disbelieve or discard the demarcation report made by D. D. Batra after making demarcation at the spot. He is an independent witness. His testimony could not be impeached in cross-examination. Learned counsel for the appellant also contended that instead of demarcating khewat no.124 only, the Local Commissioner should also have demarcated khewat no.122. The contention is misconceived. Local Commissioner has demarcated killa no. 52//2/1 of khewat no. 122/110 min. R. S. A. No. 1975 of 2010 5 and killa no. 52//9/2 of khewat no. 124/110 min. because the encroachment was said to be out of land of said killa number. Consequently, other killa numbers, which are not in dispute, were not required to be demarcated. Learned counsel for the appellant also referred to compromise Annexure P-9. However, this compromise would rather go against the appellant. Even as per this compromise, Nobat Ram – predecessor of defendants no.3 and 4 had made some encroachment on the land of plaintiffs. Nobat Ram had to give equivalent area to the plaintiffs under the compromise, but never did so. On the contrary, as against encroachment of about 7½ marlas land at that time, now the encroachment has increased to 05 kanals 11 marlas land. Consequently, in view of compromise (Annexure P-9), plaintiffs cannot be non-suited. For the reasons aforesaid, I find no merit in the instant second appeal. There is no illegality or perversity in the judgment of lower appellate court so as to warrant interference in second appeal. On the contrary, the finding recorded by the lower appellate court is justified by evidence on record and is supported by cogent reasons. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. January 12, 2011 ( L. N. MITTAL ) monika JUDGE