Punjab-Haryana High Court
Jagdeep Deceased Through His Lrs vs State Of Haryana And Ors on 29 July, 2022
102
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-1274-2018 (O&M)
Reserved on : 26.07.2022
Date of decision : 29.07.2022
Jagdeep deceased through LRs .....Appellants
versus
State of Haryana and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Sanjeev Kodan, Advocate for the appellants.
ALKA SARIN, J.
CM-3165-C-2018
This is an application for condonation of 10 days delay in
refiling the appeal.
For the reasons stated in the application, delay of 10 days in
refiling the appeal is condoned.
CM stands disposed off.
RSA-1274-2018
The present regular second appeal has been preferred by the
plaintiff-appellants against the concurrent findings recorded by both the
Courts below while dismissing the suit for permanent injunction.
The brief facts relevant to the present lis are that the plaintiff-
appellants filed a suit for permanent prohibitory injunction to restrain the
defendant-respondents from demolishing any part of the house marked by
letters AEFD with red colour in the site plan. In the alternative, a prayer was
made that in case the plaintiff-appellants are found to be in unauthorized
YOGESH SHARMA
2022.07.29 15:15
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authenticity of this order/judgment.
Chandigarh
possession, they be evicted from the said portion only in due process of law.
The plaintiff-appellants pleaded that they are owner-in-possession of a
residential house marked by letters ABCD and shown in red colour and
situated in the lal-dora (Abadi-deh) of village Gochhi, Tehsil Beri, District
Jhajjar. It was pleaded that the said house was the ancestral property and the
same was constructed by his father approximately 80 years back and after
his death the plaintiff-appellants had become owner-in-possession of the
same. The plaintiff-appellants alleged that the defendant-respondent no.2
had issued a notice dated 30.12.2010 to the plaintiff-appellants declaring that
as per the measurement carried out by the defendant-respondent no.3 the
plaintiff-appellants had encroached upon a portion of the road to the extent
of 56' x 10' = 560 sq. feet by constructing the house and the same be got
removed by 05.01.2011 otherwise the defendant-respondents would remove
the unauthorized possession over the road.
In their joint written statement the defendant-respondents stated
that the plaintiff-appellants had encroached the PWD/Government land upon
the row of the road-side 56' x 10' and the Eastern portion of this land
encroached upon by the plaintiff-appellants belonged to the shamlat-deh. It
was further stated that the measurement of the spot was carried out by the
revenue authorities in the presence of the Duty Magistrate and other
respectables of the village and after completing the demarcation proceedings
properly the impugned notice dated 30.12.2010 was issued to the plaintiff-
appellants.
The Trial Court, on the basis of the pleadings and the evidence
on the record, vide judgment and decree dated 09.03.2016 dismissed the suit
holding inter-alia that :
YOGESH SHARMA
2022.07.29 15:15
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authenticity of this order/judgment.
Chandigarh
"15. It is pertinent to observe that after institution of
this suit, the plaintiff himself moved an application to
the then trial Court of Sh. Gopal Krishan, the then
learned CJ(SD), Jhajjar, for appointment of a Local
Commission, which was allowed vide order dated
05.01.2011, read with the Order dated 27.01.2011,
whereby the Tehsildar, Beri was appointed as a Local
Commission to carry out the demarcation of the
property in dispute, after giving due notices to the
parties to the suit and after taking three pucca-points to
carry out the measurement with jareeb and following
the instructions of the Financial Commissioner. The
said demarcation was carried out on dated 11.01.2011,
after giving due notices to the relevant parties and was
duly submitted in the Court, on dated 17.02.2011.
However, the plaintiff remained was unsatisfied with
this report and independently moved other application
to the revenue authorities. But, after that, another
demarcation by ascertaining the Survey stone no.53/5
(pucca-point) and ensuring the gali also as pukhta point
was carried out. However, the same result could be
reached, as is evident from this subsequent demarcation
report dated 09.02.2011, present on the file.
It is pertinent to observe from the record that
another demarcation was conducted on dated
16.02.2011, by applying jhandis etc. and even
YOGESH SHARMA
2022.07.29 15:15
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authenticity of this order/judgment.
Chandigarh
photographs were taken at the time of this demarcation
having been conducted on dated 16.02.2011. When
these photographs are carefully perused, it is made out
that exhaustive proceedings were being carried out to
demarcate the land in dispute. Again, the result was
same, that an area of approximately 56' x 10' of the
Dighal-Beri road was found overlapped by the house
constructed by the plaintiff. After so many demarcations,
it cannot lie in the mouth of the plaintiff that there is no
encroachment on his part, into the road of the
defendants".
The plaintiff-appellants preferred an appeal against the
judgement and decree of the Trial Court. Vide judgement and decree dated
29.03.2017 the lower Appellate Court dismissed the appeal. The lower
Appellate Court found that in order to prove their case the first and foremost
requirement on the part of plaintiff-appellants was to demarcate the suit
property without any confusion surrounding the identity of the same which
had not been done. The lower Appellate Court inter-alia held that :
"...It is further to be observed that the plaintiff is not
relying upon the demarcation reports and associated
maps etc. Mark-A, Mark-B, Mark-C, Mark-D, Mark-E
and Mark-F, Mark-I, Mark-J, Mark-K and Mark-L etc.,
which have been done on the directions of learned trial
court and have been done by the revenue official in the
presence of both the parties. The demarcation report
Mark-A its associate site plan Mark-B shows that there
YOGESH SHARMA
2022.07.29 15:15
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authenticity of this order/judgment.
Chandigarh
is encroachment over the public road by the plaintiff.
The attendance-sheet associated with the same Mark-C
shows the presence of plaintiff Jagdeep son of Sh.Karan
Singh. The another demarcation report dated
09.02.2011 Mark-D also corroborates this fact and the
attendance-sheet Mark-F shows that plaintiff refused to
sign the attendance-sheet. Further the demarcation
report Mark-I dated 16.02.2011 by Tehsildar Beri
clearly mention the demarcation being done in the
presence of Advocate Bhai Karan Singh of the plaintiff.
Again it further mentions that son of Jagdeep who is
also a witness in the present matter did not cooperate in
the demarcation. Even if the demarcation reports of
defendants are not considered and only the material on
record placed by plaintiff is considered, the plaintiff has
failed to establish his case with clarity. The plaintiff is
arguing that his house lies in the Southern side of the
rasta no.151 and adjoining road no.239 and there is no
encroachment by him on the governmental land.
However, it is clear from Ex.P1 itself that the plaintiff
has not demarcated his property in a clear lucid manner
for reason best known to him. He has failed to mention
the number etc. of these rastas and in fact the alleged
rasta no.151 of the Northern side of his house is not
even shown in the site plan Ex.P1. He has not mentioned
the name of the owners of the adjoining
YOGESH SHARMA
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authenticity of this order/judgment.
Chandigarh
houses/properties etc. He has not mentioned the
dimensions of the road in the Western side or in the
Eastern side etc. He has not tried to show the location of
his suit property/house in a bird eye view so as to
compare it with the musamis Ex.P4 and Ex.P5 and askh
sizra Ex.P7 etc. He could have easily demarcated his
property by submitting two site plans; one showing his
suit property and adjoining main properties etc. and;
secondly by showing his suit property in the larger
frame showing the entire main portions of khasra
no.138 and the adjoining khasra numbers etc. It is
nowhere mentioned by the plaintiff in Ex.P1 as to what
is the width of the road on the Western side of his house
at the ground level and what is its width as per the
revenue/governmental record i.e. Ex.P4, Ex.P5, Ex.P6
and Ex.P7 etc. He could have easily refuted the claim of
encroachment by showing the full width of the road
existing at the ground level".
Learned counsel for the plaintiff-appellants would contend that
the demarcation report (Ex.P2) has been discarded by both the Courts below
on mere conjectures and surmises and further that no evidence had been led
by the defendant-respondents.
Heard.
Before this Court the only reliance placed upon by learned
counsel for the plaintiff-appellants is on a demarcation report (Ex.P2) which
YOGESH SHARMA
2022.07.29 15:15
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authenticity of this order/judgment.
Chandigarh
was discarded by both the Courts below on the ground that at the time of
preparation of the said demarcation report no notice was given to the other
side. Further, it was noticed by the Trial Court that on 29.03.2011 a
statement had been made at the Bar by the counsel for the defendant-
respondents that they had demolished the encroachment raised by the
plaintiff-appellants over the road belonging to them after the dismissal of the
application for interim injunction. This fact was admitted by the counsel for
the plaintiff-appellants before the Trial Court. The demarcation carried out
on an application filed by the plaintiff-appellants also did not further the
case of the plaintiff-appellants and the fact is that the encroachment already
stands demolished. No decree for permanent prohibitory injunction can be
passed.
No other argument has been raised by learned counsel for the
plaintiff-appellants. No question of law, much less, any substantial question
of law, arises in the present case. Both the Courts below have recorded
concurrent findings of fact warranting no interference by this Court.
In view of the above, I do not find any illegality and infirmity in
the judgments and decrees passed by the Courts below. The appeal is,
accordingly, dismissed. Pending applications, if any, also stand disposed off.
Dismissed.
( ALKA SARIN )
29.07.2022 JUDGE
Yogesh Sharma
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO
YOGESH SHARMA
2022.07.29 15:15
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
