RSA No.3691 of 2010 (O&M) - 1 - ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3691 of 2010 (O&M) Date of decision:13.09.2010 Gopal ...Appellant Versus Pawan Kumar and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. K.B.Sharma,Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. This appeal is at the instance of defendant No.1. The plaintiffs filed the suit for permanent injunction in order to restrain the defendants from interfering in the land bearing Khasra No.129 (1-2), situated at village Nangal Shehbajpur, Tehsil Bawal, District Rewari. They also prayed for possession in case the defendants succeed in encroaching upon any part of the land referred to above. In reply, the defendants had alleged that they are not raising any construction over Khasra No.129. It was rather pleaded that they are raising construction on their own plot bearing Khasra No.130 after having obtaining demarcation on 01.11.1997. It was further pleaded that the defendants have already raised construction of 2 rooms and one gallery over Khasra No.130. On the pleadings of the parties, issues were formulated by the learned Trial Court on 25.10.1999. The learned Trial Court, after considering oral as well as the documentary evidence available on record, decreed the suit of the plaintiffs with costs holding them entitled for possession of 1 Karam wide land as shown in the demarcation report dated 08.01.2008 prepared by Naib Tehsildar, Bawal and the defendants were directed to remove construction of the encroached portion and hand over vacant possession of that land to the plaintiffs within six months. All the RSA No.3691 of 2010 (O&M) - 2 - ***** defendants had filed appeal before the learned First Appellate Court, which too has been dismissed on 27.07.2010, with the following observations: - “Admittedly, the present suit was instituted on 13.10.1997 and the alleged construction was made during the pendency of the suit by the defendants after getting their plot demarcated on 09.11.1997 from Halqa Girdawar, Shri Sardar Singh DW2 vide his report dated 01.11.1997 Ex.DW2/A. It will be seen that Shri Sardar Singh was not appointed by the Court and his aforesaid report which is otherwise not acceptable to the plaintiffs does not help to resolve the controversy involved in the present case in any manner because of the simple reason that demarcation was done by him before any construction was made by the defendants. Otherwise also, Shri Sardar Singh DW2 has himself admitted during his cross-examination that he has fixed only one pucca point while carrying out his demarcation. Therefore, no weightage could be given to the aforesaid report of DW2 Shri Sardar Singh for ascertaining as to whether the defendants have encroached upon any portion of Khasra No.129 while raising construction on Khasra No.130. It is pertinent to note here that during the pendency of the present suit, a statement was also made on behalf of the defendants on 25.06.1998 to the effect that in case the construction which is being raised by them was found to be on Khasra No.129, then they will remove the same at their own expenses RSA No.3691 of 2010 (O&M) - 3 - ***** without claiming any compensation from the plaintiffs and thereafter, they were allowed to raise construction on their own land by the learned trial Court. On 25.06.1998 itself, the learned trial Court also appointed Office Kanungo, Bawal as local commissioner to demarcate Khasra No.129 on the application of the plaintiffs, who in his report Ex.PW2/5 found that the defendants have encroached upon the land of the plaintiffs in the western side of their plot to the extent of 1 karam. But the learned trial Court vide its judgment and decree dated 27.04.2005 reached the conclusion that Bishamber Dayal Office Kanungo, Rewari examined as DW2 did not conduct the demarcation by affixing three pucca points from three different directions and accordingly held that his report Ex.PW2/5 along with accompanying site plan is nothing, but wrong, illegal, null and void and not binding on the rights of the defendants and it was also held that no credit could be attached to the said report. The judgment and decree so passed by the learned trial Court was, however, challenged by the plaintiffs by way of preferring an appeal and the learned Appellate Court of Shri V.S.Malik, the then District Judge, Rewari vide his judgment and decree dated 07.09.2007 set aside the aforesaid judgment and decree of the learned trial Court and remitted the case to the trial Court for deciding the case afresh after getting the property of the parties demarcated by RSA No.3691 of 2010 (O&M) - 4 - ***** appointing a fresh local commissioner. Thereafter, the learned trial Court appointed Naib Tehsildar, Bawal as fresh local commissioner, who visited the spot and demarcated khasra No.129 and 130 of the parties in their presence and submitted his report dated 08.01.2008. As per the demarcation report dated 08.01.2008 of Naib Tehsildar, Bawal, the defendants have encroached upon 1 karam wide strip of khasra No.129 of the plaintiffs. It will not be out of place to mention here that none of the parties has raised any objection against the aforesaid report; meaning thereby that the parties did not challenge the correctness of the aforesaid report of the local commissioner. Therefore, the learned trial Court, while returning its findings on issue No.1, rightly came to the conclusion that the defendants, who are owners of khasra No.130, have encroached upon the land of khasra No.129 by raising construction thereon after the institution of the suit. The appellants- defendants had themselves undertaken before the learned trial Court on 25.06.1998 by making a statement to the effect that in case the construction which is being raised by them was found to be on khasra No.129, they will remove the same at their own expenses. Therefore, the findings of the learned trial Court that the defendants are bound to remove the construction from the encroached portion of khasra No.129 and hand over vacant possession of that portion RSA No.3691 of 2010 (O&M) - 5 - ***** to the plaintiffs do not suffer from any illegality or infirmity so as to call for any interference by this Court. Aggrieved against the judgment and decree of the Courts below, in which a concurrent finding has been recorded, only defendant No.1 has come up in appeal, in which learned counsel for the appellant has vehemently argued that the report of Naib Tehsildar, which has been relied upon by the Courts below, is rather in favour of the appellant which shows that the defendants have not encroached land of the plaintiffs. I have heard learned counsel for the appellant, perused the record carefully and found that there is no error committed by the Courts below in appreciating the evidence on record. In fact, there is no substantial question involved in this appeal as the decision of the Courts below is a result of finding of fact recorded on the basis of oral as well as the documentary evidence, therefore, the present appeal is found to be without any merit and as such, the same is hereby dismissed in limine. No costs. September 13, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE