R.S.A.No.2353 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A.No.2353 of 2006 Date of Decision : 11.10.2007 Rajinder .....Appellant versus Satbir and another .....Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA Present : Mr.Mani Ram Verma, Advocate for the appellant. Mr.R.A.Sheoran, Advocate for respondent No.1. -.- JUDGMENT HEMANT GUPTA, J. The defendant is in second appeal aggrieved against the judgment and decree passed by the learned First Appellate Court whereby suit for possession of the land measuring 6 marlas marked by the letters E F G H as shown in red colour in the site plan was decreed. It is the case of the plaintiff that he purchased the land measuring 3 kanals 5 marlas from one Gugan son of Lalji vide registered sale deed dated 25.10.1996. The possession of the land purchased was delivered to the plaintiff. The plaintiff raised construction over the land measuring 2 kanals 19 marlas out of the land comprised in Khasra No.302/2, but out of it, the remaining land measuring 6 marlas, as shown in red colour in the site plan, is in illegal unauthorized possession of the defendants. The said area was left vacant for the purpose of tethering the cattle and for parking the Rehra etc. R.S.A.No.2353 of 2006 2 The defendant filed written statement denying the ownership of the plaintiff over the suit land. It was asserted that the defendants have raised construction over the area marked by the letters A B C D E F G H in red colour in the site plan filed alongwith the written statement. The possession is alleged to be for more than 24 years. It was also pleaded that earlier the plaintiff filed a Civil Suit which was withdrawn on 24.8.1995 and, thus, the present suit is not maintainable. Though the learned trial Court dismissed the suit, but the same was decreed in appeal by the learned First Appellate Court on the basis of demarcation report wherein it was found that such land is, in fact, in illegal and unauthorized possession of the defendant-present appellant. The learned First Appellate Court has found that as per the demarcation report, Exhibit P-1, the defendants are in unauthorized possession of 6 marlas of land which has been depicted by the letters E F G H, as depicted in the site plan Exhibit P-2 prepared at the time of demarcation by the Local Commissioner. The Court also found that the Local Commissioner PW-3 Laxmi Narain, Naib Tehsildar, during his cross examination has stated that before starting the demarcation, he had fixed pucca points which have also been shown in the demarcation report and after demarcation, the report was duly sent to the Tehsildar. Therefore, the said report was made basis of the decree by the learned First Appellate Court. Learned counsel for the appellant has vehemently argued that the report of the Local Commissioner is not worthy of reliance in as much as the Local Commissioner has not affixed three pucca points before R.S.A.No.2353 of 2006 3 embarking upon the demarcation of the suit land. However, a perusal of the demarcation report Exhibit P-1 shows that it has clearly recited that the pucca points were affixed with the help of Zarip, Cross and Flags on the Phirni. The pucca points were found to be correct at the spot. After identifying such pucca points, the demarcation was carried out. Such pucca points were found to be correct. Still further, the Local Commissioner has been examined in the Court. From the cross-examination, it could not be inferred that the demarcation has been carried out without affixation of the pucca points . Once the pucca points have been affixed and the demarcation was carried out, the argument that the plaintiff has failed to connect the area of 6 marlas with Khasra No.302 is misconceived. The Local Commissioner has found the same as part of Khasra No.302 itself. The argument is that the plaintiff is estopped from filing the present suit. Though the Issue No.6 was to the effect that `whether the plaintiff is estopped by his own act and conduct from filing the present suit', but the said Issue has been taken up for decision alongwith Issue No.3. The onus to prove both these Issues was on the defendants. The learned trial Court decided these Issues in favour of the defendants on the ground that no objection was raised by the plaintiff when the defendants raised the construction. The said argument is not tenable. The dispute was regarding demarcation and the identity of the suit land. Therefore, any construction raised by the appellant under misconception assuming the same to be his property will not be sufficient to non suit the plaintiff on the principle of estoppel, who has been found to be owner of the suit land. R.S.A.No.2353 of 2006 4 Thus, I do not find any illegality or irregularity in the finding recorded by the Courts below which may give rise to any substantial question of law for consideration of this Court in second appeal. Consequently, the present appeal is dismissed. 11-10-2007 (HEMANT GUPTA) *mohinder JUDGE