RSA No.3629 of 2009(O&M) ..1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3629 of 2009(O&M) Date of Decision: 17.11.2009 Om Parkash & Ors ....Appellants Versus Harphool Singh & Ors ....Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sukhjinder S.Behl, Advocate for the appellants. * * * Sabina,J.(Oral) Plaintiffs filed a suit for possession which was decreed by the Addl.Civil Judge(Sr.Divn.) Faridkot vide judgment and decree dated 06.05.2006. Aggrieved by the same, defendants preferred an appeal and the same was accepted by the Addl. District Judge, Faridkot vide judgment and decree dated 04.06.2009. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower Appellate Court in paras 2 to 5 of its judgment read as under:- "2. Brief facts of the case are that plaintiffs are owners/co- sharers in land measuring 11 kanals, 11 marlas comprised in khasra no.2384 situated within the revenue estate of Kotkapura as per jamabandi for the year 1994-95. The RSA No.3629 of 2009(O&M) ..1. defendants claim thermselves to be owners/purchaser of part of Khasra No.2385 which adjoins the Khasra No.2384. Defendants have illegally encroached upon land measuring 01 kanal 01 marla out of Khasra No.2384 fully detailed and described in the head note of the plaint and shown in the site plan. An application was submitted by the plaintiffs to the Asstt. Collector (Tehsildar), Faridkot for demarcation of Khasra No.2384 and demarcation was conducted on 11.4.2000 and it was found that the defendants have encroached upon 01 kanal 01 marla of the land as stated above. They were requested many times to hand over its possession to the plaintiffs but in vain. 3. Defendant no.1 to 5 in their joint written statement took preliminary objections that the suit is ambiguous; that the plaintiffs are estopped to file this suit by their act and conduct and that the suit is bad due to non-joinder and mis- joinder of parties. On merits, they have stated that they are bonafide purchaser with possession, without notices of land vide registered sale deed dated 28.8.1985. They have also taken the plea that they are in possession of the property purchased by them for the last more than 20 years and they have become its owner by efflux of time. Plaintiffs have sold the land out of khasra No.2384 to different persons and left some land as streets also. They have also denied that they have encroached upon any land belgonging to the plaintiffs. RSA No.3629 of 2009(O&M) ..1. Site plan attached by the plaintiffs is incorrect. Defendant No.5 has been impleaded wrongly. In fact, his wife Raj Rani purchased propoerty from Darshan Singh and others vide registered sale deed dated 28.8.1985, which was purchased by them from one Surjit Kaur vide registered sale deed dated 26.10.1978. Defendant No.1 has also been impleaded wrongly. Property in his posssession was purchased by Kartar Kaur (mother of defendant No.1) wife of Harmail Singh vide registered sale deed dated 18.11.1993, who purchased the same from Ram Chand Deora vide registered sale deed dated 17.8.1959. They have also stated that the plaintiffs never raised any objection when the construction was raised by the defendants more than 15 years back. Rest of the contentions made in the plaint have been denied. 4. Defendant no.6 was proceeded against ex parte by the trial court. 5. Deefendant Nos.7 and 8 were also represented by ld. Counsel for defendant nos.1 to 5. No separate written statement was filed on behalf of defendant Nos.7 and 8, who were impleaded by amending the plaint. On the pleadings of the parties,the following issues were framed by the trial court: 1. Whether the defendants have encroached upon the land measuring 01 kanal 01 marlas out of the khasra no.2384? OPP. 2. If issue no.1 is proved, whether the plaintiff is RSA No.3629 of 2009(O&M) ..1. entitled to the possession of the land as prayed for ? OPP 3. Whether the site plan attached with the plaint is wrong?OPD. 4. Whether the defendants are bonafide purchasers with possession and are protected under Section 41 of the T.P.Act? OPD. 5. Whether the plaintiffs are estopped from filing the present suit on account of their act and conduct?OPD. 6. Whether the defendants have become owners in possession by way of adverse possession?OPD. 7. Whether the suit is bad for non-joinder and mis- joinder of necessary parties?OPD. 8. Relief." After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal is devoid of any merit. Plaintiffs had filed a suit for possession of the land in dispute. The case of the plaintiff was that the defendant had encroached upon part of khasra no.2384 and they were in illegal possession of the same. The learned trial court while reliying upon the report of the Local Commissioner held that the defendants had encroached upon 11 kanals, 11 marlas of land bearing khasra no.2384 of the plaintiffs and hence, the suit of the plaintiffs was decreed. The learned Additional District Judge however has held as under: "12. However, findings of the trial court under these issues cannot be up-held as it has been found that the demarcation was not conducted in accordance with law by the kanungo in view of the discussion here-in-after made. RSA No.3629 of 2009(O&M) ..1. 13. Volume 1, Chapter 1, Part M of the High Court Rules and Orders have extracted the instructions issued by the Financial Commissioner in case of boundary dispute, which are as under: "If a boundary in dispute, the Field Kanungo should rely it from the village map prepared at the last settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross staff mark out the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map. But if there is no map on the square system availale, he should then find these points on different sides of the place in dispoute, as near to it as he can, and, if possible not more than 200 kadams apart which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of RSA No.3629 of 2009(O&M) ..1. these points and compare the result with the distance given by the scale applied to the map. If the distances, when thus compared, agree in all cases, he can then draw lines joining these three points in pencil on the map and perpendiculars with the scale from these lines to each of the points it is required to lay out on the ground. He will then, lay them out with cross-staff as before and test the work by seeing whether the distance from one of his marks to another is the same as the map. If there is only a small dispute as to boundary between two fields the greater part of which is undisturbed then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their disgonals,as in the field book and in the map, and curves made as shown in the map. (ii) In the report to be submitted by him, the Field Kanungo must explain in detail how he made his measurements. He should submit a copy of the relevant portion of the current settlement field map of the village showing the fields, if any, with their dimensions(karukan)of which he took measurements, situated between the points mentioned in instructioin No.(i) above and the RSA No.3629 of 2009(O&M) ..1. boundary in dispute. This is necessary to enable the court to follow the method adopted and to check the Field Kanungo's proceedings. (iii) If a question is raised as to the position of the disputed boundary according to the field map of the settlement proceeding the current settlement that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field map to be submitted under instruction No.(ii). (iv) on the same copy should be shown also, the limits of existing actual possession. (v) The areas of the fields, abutting on the boundary, in dispute, as recorded at the time of the last settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with the explanation of the cause or causes of the increase or decrease, if any, discovered. (vi) When taking his measurements of the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidete the matter in dispute. At the end, he should record the statements of all the parties to the effect that they RSA No.3629 of 2009(O&M) ..1. have seen and understood the measurements that they have no objection to make to this(or if they have any objections he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurements and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent. (vii) The above instructions should be followed by Revenue Officers or Field Kanungo whenever they are appointed b y a Civil Court as Commissioners in suits involving disputed boundaries." 14. Application dated 27.3.2000(Ex.P1) which was submitted by plaintiff no.1 Om Parkash Gupta to the Tehsildar for demarcation of the land comprised in Khasra No.2384 and other khasra numbers, would show that it was not mentioned therein that any land out of khasra no.2384 has been encroached upon by the defendants or by any body else. He simply sought the demarcation of khasra no.2384 etc as he suspected that the land of his ownership was less at the spot. 15. Report dated 11.4.2000(Ex.P2) submitted by Mohan Singh Kanungo shows that none of the defendants was called to the spot at the time of demarcation. The persons, who were RSA No.3629 of 2009(O&M) ..1. present at that time were Balbir Singh, Sukhdev, Sandeep Gupta, Harwinder Kumar, Om Parkash Gupta and Desa Singh Chowkidar, Gursewak Singh Patwari was present with the Kanungo. Since it was not stated in the application Ex.p1 that any land has been encroached upon by the defendants, it appears that no notice was sent to them. Report would further show that no "pacca" point was available at the spot and the persons present at the spot admitted Northern, Southern, Eastern and Western corners of khasra no.2384 as correct and by taking those points as "pacca" points, demarcation was conducted. Thus it can be that the defendants were not present at the spot and they did not admit the alleged "pacca" points for the purpose of demarcation. Mohan Singh Kanungo has not been examined by the plaintiffs. Only Gursewak Singh Patwari has been examined by them as PW1. 15. Ex.P2 would show that the demarcation was conducted by a steel tape. It appears that only Aka Shajra was with the patwari. 16. PW-1 Gursewak Singh Patwari has stated in his cross-examination that no list of the persons was given to Desa Singh Chowkidar to summon them to the spot. Admittedly this witness has stated that oral instructions were given to the chowkidar to inform the defnedants but this contention cannot be admitted to be correct as neither this fact has been mentioned in the report nor in application ex.P1, it RSA No.3629 of 2009(O&M) ..1. was stated that the defendants were in illegal possession of the disputed land. He also admitted that the persons present at the spot were summoned by Om Parkash(plaintiff). He also admitted that there was no " pacca" point and there was old abadi and no stone was there. He also admitted that "pacca" points were fixed at the instance of the persons present at the spot. PW-2 Harwinder Kumar stated in his cross-examination that the demarcation was conducted from the houses which were already constructed at the spot and were taken as "pacca" points. PW-3 Om Parkash Gupta, one of the plaintiffs, stated in his cross-examinatioin that Govt. Tannerywas there near the land in dispute, which was taken as a "pacca" point. He also admitted that the house of Kartar Kaur was in the land comprised in khasra no.2384 and 2385. He also admitted that the plaintiffs had also constructed a wall and had sold two plots each of 700 sq. Yards out of khasra no.2384 and that houses were constructed at the spot in the land which was sold by them. 17. From the evidence led by the plaintiff, it is clearly made out that the whole of the land comprised in khasra no.2384 was not lying vacant at the time of demarcation. From the statements of PW1 to PW3 it is not made out as to which were the "pacca" points from which the demarcation was conducted because as per PW-1 all the four corners of khasra No.2384 were taken as "pacca" point, as per PW-2 RSA No.3629 of 2009(O&M) ..1. houses constructed at the spot were taken as "pacca" points and as per PW3 building of Govt tannery was taken as "pacca" point." Thus, the learned Additional District Judge had rightly discarded the report of the Local Commissioner as the same had been prepared at the back of the defendants. The Local Commissioner, who had demarcated the suit property, had admitted while appearing in the witness box that there was no pacca point and the same had been fixed at the instance of the persons present at the spot. However, the defendants were not given any notice at the time when the demarcation was conducted by PW1 Gursewak Singh, Patwari. In these circumstances, learned Additional District Judge had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this case. Accordingly, this appeal is dismissed. 17th Nov.2009 (SABINA) Seema-II Judge