Punjab-Haryana High Court

Sumer (Since Deceased) Through His Lr ... vs Hawa Singh And Ors on 23 September, 2024

                                      Neutral Citation No:=2024:PHHC:126021




             IN THE HIGH COURT OF PUNJAB AND HARYANA
                           AT CHANDIGARH
                                ****

117                                            RSA-914-2022 (O&M)
                                               Date of Decision.:23.09.2024

Sumer (since deceased) through
his LR Dinesh Kumar                                        .....Appellants
                                     Vs.
Hawa Singh and Others                                      .....Respondents

CORAM:-     HON'BLE MR. JUSTICE DEEPAK GUPTA

Present:-   Mr. Gautam Kaile, Advocate
            for the appellants.
                                              ****

DEEPAK GUPTA, J. (ORAL)

Suit ﬁled by the plain!ﬀ Hawa Singh (contes ng respondent herein) for possession and consequen!al relief of permanent injunc!on against ﬁve defendants including the present appellant, was decreed on 13.09.2016 by ld. Addi!onal Civil Judge (Senior Division), Kharkhoda. The appeal ﬁled by three of the defendants (including the appellant before this Court) was dismissed by the ﬁrst Appellate Court on 25.11.2021. Against this concurrent ﬁnding, one of the defendant Sumer through his LRs (present appellant) has approached this Court.

2. Plain!ﬀ had sought possession of the land measuring 4 Kanal 0 Marla comprised in Khewat No.990/918, Khata No.1138, Rectangle & Killa No.149//19/2(4-0) situated within the Revenue Estate of Tehsil Kharkhoda, District Sonepat, on which the defendants had made encroachment. It was alleged that despite the demarca!on report prepared by the Local Commissioner and request made to the defendants to remove the encroachment, nothing was done.





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                                           Neutral Citation No:=2024:PHHC:126021




RSA-914-2022 (O&M)                                                      -2-

3. Courts below found the encroachment of diﬀerent areas of the suit land belonging to the plain!ﬀ on the part of the defendants and so, accepted the claim of the plain!ﬀ and decreed the suit.

4. The conten!on raised by learned counsel for the appellant before this Court is that no no!ce was given by the Local Commissioner to the appellant before his visit to the spot and therefore, the report to the Local Commissioner could not be relied above.

5. A?er hearing learned counsel for the appellant and perusing the impugned judgments passed by the Courts below, this Court does not ﬁnd any merit in the appeal.

6. It will be relevant to reproduce the observa!ons made by the ﬁrst Appellate court, which reads as under:-

"8. Having considered the rival conten!ons and perusing the record, it is observed that appellants - defendants no.3 to 5 are neither owners nor they have any concern with the suit land i.e. Killa No.149/19/2(4-0) in any manner. So far as sale deed Ex.DW1/A is concerned; it relates to land, which situates in Ward No.8, Kharkhoda and same was purchased by one Baljit son of Bhagwana from Raju son of Chander Bhan. It is thus not understandable as to how and on what basis, appellants -defendants No. 3 to 5 are claiming their ownership on such document, which do not confer upon any right of ownership in the suit land. The recital of said sale deed Ex.DW1/A relates to one Plot measuring 600 square yards, situated in Ward No.8, Kharkhoda, whereas, suit land is of agricultural in nature and as such it may safely say that appellants - defendants No. 3 to 5 took evasive stand rela!ng to sale deed dated 28.10.1993 Ex.DW1/A, just to twist the clear cut case of encroachment done by them over suit land. According to demarca!on report Ex.P3, it can be gathered that defendant No.2- Hari Singh has encroached upon suit land to the extent of land 0-3M; appellant -defendant No.3 has encroached upon suit land to the extent of land 0-18M; appellant - defendant No.4 has encroached upon suit land to the extent of land 0-8M and appellant - defendant No.5- Ram Niwas has encroached upon suit land to the

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RSA-914-2022 (O&M) -3- extent of land 0-5M. S!ll further, there is constructed slaughter house over land measuring 0-17M belonging to Municipal CommiGee and further there is exis!ng land 0-14M which is of concrete street. However, land of Killa No.149/19 was divided into two Rect. & Killa Nos. 149/19/1 and 149/19/2.

9. It is further not understandable as to why respondent No.2- defendant No.1 {M.C.} is silent about judgment and decree passed by Court below, because M.C. neither ﬁled any appeal nor contested this appeal, which itself shows that M.C. has accepted the judgment and decree passed by Court below. It is quite seGled proposi!on of law that if suit land is of joint agriculture land of many co- sharer, even then, one of co-sharer among them is competent to protect joint property from the hands of strangers. Further, in compliance of Court's order, local commissioner was appointed, who demarcated the suit property and then submiGed report before Court's below. If any demarca!on was being done on the direc!on of Court, then such report shall be considered the part of judicial ﬁle and mere non-exhibi!on of such report would not lose its signiﬁcance and this report would make it clear that MC{ defendant no.1} had constructed slaughter house over area of suit land to the extent of 90.580 and 61.831 square years; appellant no.1 to 3-defendant no.3 to 5 have constructed house to the extent of Area 289.211 Sq. yards over suit land and so it would not lie in their mouth to say that such report cannot be read in evidence, rather, LC report is part of judicial ﬁle and same was correctly considered by Court below in accep!ng plea of encroachment done by them over suit land without having any !tle therein. If there is any conﬂict among two report of LC, then last report accompanied with site plan prepared by total machine shall prevail upon. Thus, conten!on raised by learned counsel for appellants - defendants No. 3 to 5 is not found sustainable as learned Court below has appreciated the en!re evidence available on record in right perspec!ve. A?er due apprecia!ng of evidence, learned Court below has recorded correct ﬁndings that respondent no.1-plain!ﬀ being owner of suit land is en!tled to possession of encroached land from appellants-defendants.

10. Looking into en!re facts and circumstances, this Court has no hesita!on to say that impugned judgment does not suﬀer from any illegality or inﬁrmity or perversity to the extent of encroachment done by appellants defendant no.3 to 5 over suit land, which shall be pursuant to site plan prepared by total machine only and not otherwise and so ﬁndings recorded therein are modiﬁed to that

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RSA-914-2022 (O&M) -4- extent, while ﬁnding no other scope of interference by this appellate court."

7. Thus, it is evident from the aforesaid observa!ons that defendant No.3 (appellant herein) had encroached upon the suit land to the extent of 18 Marla. The encroachment on the part of other defendants was also duly men!oned. It is also observed that Local Commissioner had been appointed by the Court and it is on the basis of the report submiGed by him that encroachment was conﬁrmed.

8. To the speciﬁc query put by this Court to learned counsel as to whether any objec!ons were ﬁled against the report of the Local Commissioner, learned counsel could not convince this Court.

9. In the aforesaid facts and circumstances, this Court does not ﬁnd any reason to interfere in the well-reasoned concurrent ﬁndings of facts recorded by the Courts below, which prove the encroachment on the suit land belonging to plain!ﬀ on the part of appellant- defendant No.3 and other defendants.

10. As such, ﬁnding no merit in the present appeal same is hereby dismissed.

( DEEPAK GUPTA ) JUDGE September 23, 2024 Nee!ka Tuteja Whether Speaking/reasoned Yes/No Whether Reportable Yes/No

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