RSA No.1222 of 2004 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 21.01.2008. Sat Parkash and another ... Appellants Versus Smt. Bimla Devi and others ... Respondents. CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI. Present: Mr.Vinod S. Bhardwaj,Advocate,for the appellants. Mr.Amit Jain, Advocate,for the respondents. PERMOD KOHLI, J. (Oral): This is defendant's Regular Second Appeal against the judgment and decree dated 05.11.2003 passed by the learned Additional District Judge, Gurgaon, whereby the learned Lower Appellate Court has modified the judgment and decree dated 13.03.2002 passed by the learned trial Court. The respondent-plaintiffs filed a suit for permanent injunction seeking a restraint order against the defendants from interfering in the right of the plaintiff by raising a wall CDE shown in the site plan attached with the plaint and also restraining them from interfering in the ownership and possession of the plaintiffs and also restraining them from demolishing any part of the existing wall DCEF shown in the site plan attached with the plaint. The claim of the plaintiffs-respondents was based upon sale deed RSA No.1222 of 2004 -2- dated 13.09.1989. The defendants resisted the claim of the plaintiffs in the written statement. The site plan produced by the plaintiffs was disputed and it was stated that the same does not reflect correct existing position on the southern side of the disputed passage. It was further alleged that the plaintiffs wanted to encroach the line of the passage of the defendants by stretching their plot towards the southern side out of khasra No.1779, which in fact, was owned by Navjit Singh etc. from whom the plaintiffs purchased the property. The defendants also raised a counter claim and stated that the defendants are owners in possession of residential/commercial property shown in green colour in the site plan attached with the counter claim which forms part of khasra No.1778 situated in village Gurgaon now in the Municipal Limits of Gurgaon City at Mehrauli Road. They also claimed passage measuring 24 ft. 9 inches wide as shown in the blue and red colour and marked by letters ABCD in the site plan which form part of khasra No.1778. This passage was stated to be left by the defendants in compromise in a civil suit regarding which an execution petition was pending. The learned trial framed the following issues on 20.09.1994:- 1. Whether the plaintiffs are owners in possession of the property in dispute? OPP 2. If issue No.1 is proved, whether the plaintiffs are entitled to the injunction as prayed for? OPP RSA No.1222 of 2004 -3- 3. Whether the plaintiffs have no locus-standi and cause of action to file and maintain the suit? OPD 4. Whether the suit has been filed at the instance of Ram Kishan son of Ram Mehar? OPD 5. Whether the plaintiffs had encroached upon the passage in connivance with Ram Kishan. If so its effect? OPD 6. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD 7. Relief. Vide order dated 26.09.2001, the following additional issues were also framed by the learned trial Court:- 1-A Whether the plaintiffs have encroached upon the portion rasta forming part of khasra No.1778 as alleged in the counter claim? OPD 2-A Whether the defendant is entitled to a decree for mandatory injunction as prayed for in the counter claim? OPD RSA No.1222 of 2004 -4- For the just decision of the present appeal, issue Nos.1,2, 1-A and 2-A are relevant. During the course of trial, a Local Commissioner was appointed by the learned trial Court who submitted his report dated 16.04.2000. The Local Commission was a Revenue Officer (Kanungo). On the basis of the evidence on record and taking into consideration the report of the Local Commission , the learned trial Court vide its judgment and decree dated 13.03.2002 found that the plaintiff is in possession of one gattha in excess of the land purchased by him, whereas the defendant is also in possession of three gatthas of land in excess of the property which he claims to be owner in possession. Accordingly, the learned trial Court refused to grant injunction to the plaintiffs as also dismissed the counter claim of the defendant-appellant herein. Both the sides filed separate appeals challenging the judgment and decree of the learned trial Court and the learned Lower Appellate Court has modified the judgment and decree of the learned trial Court and restrained both the parties from encroaching upon any portion or passage abutting towards southern side of their property. Both the parties were further restrained from interfering in the respective possession of the parties by granting injunction. Mr.Vinod S. Bhardwaj, learned counsel for the appellants has vehemently argued that the findings of fact recorded by the learned trial Court that the excess property in possession of the defendant is part of khasra No.1775 and this finding is not borne out of the record produced RSA No.1222 of 2004 -5- before the Court. He has also referred to the report of the Local Commission and the site plan annexed therewith to argue that khasra No.1775 is not adjoining khasra No.1778 and, thus, the finding is based upon no evidence. It is admitted case of the appellants that the property in their possession form part of khasra No.1778 and both the learned Courts below have concurrently held that the property stated to be encroached by the plaintiffs does not form part of khasra No.1778. Apart from that, it has also been recorded that the defendants are in possession of excess land i.e. three gatthas more than the property claimed by them. I have perused the report of the Local Commission. The Local Commission has also recorded the same finding that both the parties are in possession of excess land than purchased/acquired by them. Learned counsel for the appellants has also argued that the report of the Local Commission cannot be read in evidence without other material on record and the same cannot be read as part of the substantive evidence. I am unable to accept this submission of the Leonard counsel as Order 26 Rule 10 (2) of the Code of Civil Procedure clearly provides that the repot of the Local Commission shall form part of the evidence. It is not the case of the appellant that the report of the Local Commission has been accepted without providing an opportunity to the parties to file their objections. Once the report of the Local Commission is not challenged by any of the parties, it will constitute an evidence in the case and has to be read in evidence. Since there is categorical findings by the learned Courts below that both the parties are in possession of the excess land, none of them have encroached each others area, no injunction can be granted to any of the parties. No substantial question of law arises. RSA No.1222 of 2004 -6- In view of the above, I find no merit in this appeal and the same is hereby dismissed with no order as to costs 21.01.2007. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES/ NO