R.S.A.No. 182 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 182 of 2009 Date of decision: 28.4.2011 Sheela ......Appellant Versus Ram Avtar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.N.S.Shekhawat, Advocate, for the appellant. Mr. Pritam Saini, Advocate for respondents **** SABINA, J. Plaintiff had filed a suit for permanent and mandatory injunction. The case of the plaintiff, in brief, was that the plaintiff had raised a boundary wall after purchase of the plot in question. Harpal Singh was the owner of the suit property and the plaintiff had purchased the same from him vide sale deed dated 26.8.1980. Mutation was sanctioned in favour of the plaintiff on the basis of the sale deed. Defendants No.1 and 3 were Municipal Councilors and by taking advantage of their position, they had constructed a wall on R.S.A.No. 182 of 2009 2 the plot of the plaintiff with an intention to grab her plot. Defendants No.2 and 5, in their written statement, averred that the defendants had raised construction over the property which fell in killa No.3/2. They had raised boundary wall up to 5 feet around their plot. The plaintiff had no concern with the said plot. The plaintiff had purchased the land falling in killa No.4/1. Defendants No.1, 3 and 4, in their written statement, averred that the plaintiff had purchased the land bearing killa No.4/1 to the extent of 4/10th share. They had no concern with the property belonging to the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner in possession of the property mentioned in para No.1 of the plaint? OPP. 2. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 4. Whether the suit is bad for mis- joinder of necessary parties? OPD 5. Relief.” The Civil Judge (Sr.Divn.) dismissed the suit of the plaintiff vide judgment and decree dated 5.10.2006. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 16.11.2007 passed by the Additional District Judge. Hence, the present appeal by the plaintiff. R.S.A.No. 182 of 2009 3 After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The case of the plaintiff was that she had purchased 4 marlas of land out of killa No.221/4/1, whereas, the case of the defendants was that they were owners of property bearing killa No.3/2. The defendants further pleaded that they had constructed a wall in their own property. It is a settled proposition of law that the plaintiff has to plead and prove her case and has to stand on her own legs and cannot draw any benefit from the weakness in evidence led by the defendants. In order to establish that the defendants had raised wall in killa No.4/1, the plaintiff was required to lead evidence in this regard. The site plan placed on record by the plaintiff did not depict that it formed part of killa No.4/1. Although the plaintiff, while appearing in the witness box, deposed that the site plan was with regard to killa No.4/1 but the draftsman PW-1, who had prepared the site plan, in his cross-examination, deposed that the plaintiff had not provided him the title deeds nor had given the particulars of the killa numbers and so he had not mentioned the killa numbers in the site plan. In these circumstances, the site plan proved on record by the plaintiff PW1/A failed to advance her case. It has been noticed by the learned first Appellate Court that in para No.33 of its judgment that the plaintiff in her cross- examination stated that she had got the land demarcated but she failed to produce the said report in evidence. It has been further noticed by the learned first Appellate Court that the defendants had proved on record the demarcation report Ex.DW5/1 dated 15.1.1996 R.S.A.No. 182 of 2009 4 which had been prepared much prior to the controversy in issue. DW-2 Bhagmal deposed that he had got the land demarcated after purchasing killa No.3/2 from Sushila. As per the said report, no encroachment was shown to have been made by the defendants. Before the first Appellate Court, the plaintiff moved an application for permission to lead additional evidence and prove on record demarcation report dated 26.10.2006. However, the said report was prepared at the back of the defendants as no notice was issued to the defendants at the time of demarcation. Learned first Appellate Court, while dealing with the said report, has observed that a perusal of the report reveals that no pucca points had been fixed by the Local Commissioner before preparing the report. In these circumstances, learned first Appellate Court has rightly held that no reliance could be placed on the said report of the Local Commissioner. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiff had failed to establish that the defendants had encroached upon killa No.4/1. The said finding of fact cannot be interfered by this Court in appeal. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 28, 2011 anita