IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4466 of 2009 (O&M) Date of Decision : 23.3.2010 Jyoti Ram and others ....Appellants Versus Saudagar Ram ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Jasmeet Singh Bedi, Advocate for the appellants. ..... MAHESH GROVER, J. C.M.No.13387-C of 2009 Allowed as prayed for. C.M.No.13388-C of 2009 in/and R.S.A.No.4466 of 2009 This Regular Second Appeal is directed against the judgment of the first Appellate Court dated 17.8.2009. A suit for permanent injunction was initiated by the plaintiff/respondent who pleaded that the appellants be restrained from encroaching upon a passage which is comprised in Khasra No.145. The trial Court had dismissed the suit by observing that the ownership of the respondent was not proved and that the report of the Local Commissioner could not be relied upon. The first Appellate Court had reversed the findings leading to the filing of instant R.S.A.No.4466 of 2009 (O&M) -2- Regular Second Appeal. The appellants had denied any encroachment on Khasra No.145. A perusal of the impugned judgment shows that the contentions raised before this Court are not worthy of merit. Learned counsel for the appellants has contended before this Court that the reports of the Local Commissioners who were appointed prior to the filing of the suit and also during the pendency of the suit were not reliable. He pleaded that the son of the plaintiff had named a revenue official who was appointed as Local Commissioner by the Tehsildar. He further contended that both these reports could not have been relied upon. The impugned judgment shows that prior to the filing of the suit in the year 2000, similar proceedings were initiated by the plaintiff/respondent and in those proceedings learned counsel for the appellants had made a categoric statement that he would not make any encroachment in Khasra No.145. He pleaded that the sole construction which he intended to raise would be that in Khasra No.146 which is owned and possessed by him. The proceedings reflect that three Local Commissioners were appointed, one prior to the initiation of the proceedings in civil court and two subsequent thereto. Even if these two reports are ignored, as a grievance has been made by the learned counsel for the appellants regarding the same revenue official having been appointed as Local Commissioner, then also the third report which was made by an advocate on 28.5.1999 clearly reflects R.S.A.No.4466 of 2009 (O&M) -3- the encroachment having been made by the appellants in the disputed portion described as Khasra No.145. I am of the opinion that a pure question of fact has been determined by the first Appellate Court. No substantial question of law has been shown to have arisen in the present appeal. The reports of the Local Commissioners having been established, I do not find any infirmity in the findings recorded by the first Appellate Court. The next question that has been raised by the learned counsel for the appellants is that the suit was only for permanent injunction and not for mandatory injunction and, therefore, the Court could not have granted such a prayer. In the opinion of this Court this contention is also without any merit. The appellants, who are encroachers, do not have an equitable right in their favour. They have encroached upon a passage without any authority and in such an eventuality the first Appellate Court was always within its right to grant the substantial prayer before it and mould the relief accordingly. The appeal is dismissed. Consequently, the stay application is also dismissed. 23.3.2010 (MAHESH GROVER) JUDGE