RSA No. 1889 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1889 of 2010 (O&M) Date of decision: December 8, 2010 Harbans Singh ...Appellant Versus Ajaib Singh and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Bhag Singh, Advocate, for the appellant. GURDEV SINGH, J. This second appeal has been filed by Harbans Singh- appellant/defendant No.2 against the judgment and decree dated 17.11.2009 passed by the Additional District Judge, Ambala, vide which he accepted the appeal preferred by Ajaib Singh and Sahib Singh-respondents No. 1 and 2/plaintiffs, against the judgment and decree dated 26.3.2009 passed by the Additional Civil Judge (Sr. Divn.), Ambala City, dismissing the suit of the plaintiffs for possession of 10 marlas out of total land measuring 1 kanal 4 marlas bearing Khasra No. 79//1/2 situated in village Khurd, Tehsil Naraingarh, District Ambala. The plaintiffs averred in their plaint that they are the owners of the land in dispute which was encroached upon by the defendants about 2/3 years back. He made an application for demarcation of Khasra No. 79//1/2 RSA No. 1889 of 2010 2 before the Assistant Collector 2nd Grade, Naraingarh and the same was carried out by a retired Kanoongo on 26.6.2001 in the presence of the parties and at that time, it was found that his land has been encroached to the extent of 10 marlas by the defendants. They requested them to relinquish the possession of that land but they refused, which necessitated for filing the suit for possession. The claim of the plaintiffs was admitted by defendants No. 1 and 3. However, the suit was contested by defendant No.2. In his written statement, he denied the contentions of the plaintiffs and pleaded that his land bearing Khasra No. 80 adjoins the land of the plaintiffs and he is coming in possession thereof since the time of consolidation of holdings. He retired from the Indian Army in the year 1973. He was not cooperated by his brother and was forced to construct the house in Khasra No. 80 in the year 1974. The construction of the first floor was raised by him in the year 1980. He obtained electric connection for that house and is paying the house tax also. His possession is open, uninterrupted, hostile and continuous for the last more than 12 years and he has become the owner by way of adverse possession. He also pleaded that the report of the demarcation obtained by the plaintiffs through the Local Commissioner is wrong. While praying for the dismissal of the suit, he made a counter-claim for declaring him to be the owner in possession of the land measuring 10 marlas out of the land measuring 1 kanal 4 marlas bearing Khasra No. 79//1/2. In the replication to the written statement of this defendant, the plaintiffs denied the contentions raised therein and reiterated all the averments made in the plaint. RSA No. 1889 of 2010 3 On the pleadings of the parties, the following issues were framed by the trial court:- “1. Whether the plaintiffs are entitled to possession of the land measuring 0K-10 M out of the land measuring 1 K -04 M on its East side bearing K/K No. 42 & 43 K. No. 79//1 and 2 situated at village Khurd, Tehsil Naraingarh, District Ambala ? OPP 2. Whether suit of the plaintiffs is not maintainable in the present form ? OPP 3. Whether the plaintiffs are estopped by their own act and conduct to file the present suit ? OPD 4. Whether defendant no.2 entitled to decree that he became owner of the land measuring 10 M out of the land measuring 1 K-4 M situated in village Khurd by way of adverse possession by way of counter claim ? OPD 5. Whether suit of the plaintiff is false frivolous and is liable to be dismissed with costs ? OPD 6. Whether the counter claim filed by defendant No.2 is liable to be dismissed ? OPP 7. Whether no proper court fee has been affixed on the counter claim ? OPP 8. Relief.” To prove their case, the plaintiffs examined Om Parkash (PW- 1). Sahib Singh-plaintiff No.2 himself entered the witness box as PW-2. On the other hand, defendant No.2 himself appeared in the witness box as DW- 2 and examined Surjit Singh (DW-1) and Hukam Chand (DW-3). RSA No. 1889 of 2010 4 After going through the evidence so produced on the record and hearing learned counsel for both the sides, the trial court decided issues No. 1, 4 and 6 in favour of the plaintiffs and the other issues against them and resultantly, dismissed their suit as well as counter-claim of defendant No.2. The first appeal was preferred only by the plaintiffs and no such appeal was preferred by defendant No.2, though his counter claim was dismissed by the trial court. It has been submitted by the learned counsel for defendant No.2 that the demarcation reports on the basis of which the findings have been recorded in favour of the plaintiffs by the first appellate court were not legal and valid as those were not proved on the record, as per law, and the demarcation had not been conducted in accordance with the instructions issued in that regard. According to him, substantial question of law arises, whether the finding regarding encroachment on the land by the plaintiffs by defendant No.2 could have been recorded on the basis of such like demarcation. This submission of the learned counsel for defendant No.2 is devoid of merits. Defendant No.2 had claimed adverse possession of 10 marlas of land out of the total suit land measuring 1 kanal 4 marla and made a counter claim that he had become the owner of that part of the land by way of adverse possession. By taking that plea, he expressly admitted in so many words that encroachment had been made by him on the land of the plaintiffs, though his counsel has tried to assert that defendant No.2 had claimed adverse possession over the land bearing Khasra No. 80, while such a plea could not have been taken by defendant as said khasra No. 80 belongs to him. From the perusal of his written statement, there is no doubt that he RSA No. 1889 of 2010 5 claimed adverse possession over the land of the plaintiffs. The findings recorded against him, while dismissing his counter claim have already become final. No such substantial question of law arises in the present appeal and the same is dismissed. December 8, 2010 (GURDEV SINGH ) prem JUDGE