Punjab-Haryana High Court
Maan Singh vs Kirandeep Singh And Others on 25 September, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Reserved on : 02.09.2024
Pronounced on : 25.09.2024
RSA-4112-2019 (O&M)
MAAN SINGH ....Appellant
VERSUS
KIRANDEEP SINGH & ORS. ....Respondents
RSA-4098-2019 (O&M)
JARNAIL SINGH (SINCE DECEASED) THR LRS & ORS. ....Appellants
VERSUS
KIRANDEEP SINGH & ORS. ....Respondents
RSA-5452-2019 (O&M)
MALKIAT SINGH ....Appellant
VERSUS
KIRANDEEP SINGH & ORS. ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Suraj Kaundal, Advocate for
Mr. N.S. Chahal, Advocate for the appellants in all the RSAs.
ALKA SARIN, J.
CM-11309-C-2019 in RSA-4112-2019
1. For the reasons stated in the application, the same is allowed.
Delay of 102 days in refiling the appeal being RSA-4112-2019 is condoned.
CM-11278-C-2019 in RSA-4098-2019
2. For the reasons stated in the application, the same is allowed.
Delay of 125 days in filing the appeal being RSA-4098-2019 is condoned.
RSA-4112-2019 and other connected cases -2-
CM-15504-C-2019 & CM-15505-C-2019 in RSA-5452-2019
3. For the reasons stated in the application, the same is allowed.
Delay of 125 days in filing as well as 28 days in refiling the appeal being
RSA-5452-2019 is condoned.
RSA-4112-2019 and other connected cases
4. The present three separate regular second appeals being RSA-
4112-2019, RSA-4098-2019 and RSA-5452-2019 have been preferred by the
plaintiff-appellants challenging the judgment and decree dated 23.08.2017
passed by the Trial Court and the judgment and decree dated 13.10.2018
passed by the First Appellate Court. RSA-4112-2019 has been preferred by
the original plaintiff No.1, RSA-4098-2019 has been preferred by the original
plaintiff Nos.2, 3, 4, 5 and 7, while RSA-5452-2019 has been preferred by the
original plaintiff No.6.
5. Brief facts relevant to the present lis are that the plaintiff-
appellants filed a suit for mandatory injunction for directing defendant-
respondents No.1 to 3 to restore the passage illegally encroached upon by
them in Khasra No.2973/2-14, Khewat No.83, Khatoni No.386 as per the copy
of the Jamabandi for the year 2004-05 situated in the area of Kotkapura-4,
H.B. No.129, Tehsil Kotkapura, District Faridkot correctly depicted in point
CFGJ shown in horizontal red lines going from Rect. No.485, Killa No.15,
14, 17/24, 23/1, 23/2, 22, 22/2, 2, 3 as shown in the site plan attached with the
plaint as also for permanent injunction for restraining the defendant-
respondents No.1 to 3 from changing the nature of the passage by raising any
type of construction or by any other mode. The suit was filed averring therein
RSA-4112-2019 and other connected cases -3-
that the pacca passage which is about 2 Karam bearing Khasra No.2973,
Khewat No.83, Khatoni No.386 had been encroached upon by the defendant-
respondents No.1 to 3. It was averred that the plaintiff-appellants have filed
an application before the Sub-Divisional Magistrate, Faridkot on 15.06.2010
for getting the demarcation done, which was marked to one Bhupinder Singh,
Kanugo Halqa, who went to the spot on 09.11.2010 and in the presence of
both the parties demarcated the land and had given his report stating therein
that the passage had been encroached upon and further that the same had
merged into the land of the defendant-respondents No.1 to 3. As per the Aks
Sijra prepared by Roop Singh, Patwari a passage existed in Khasra No.2973.
It was further averred that no other passage leads to the houses of the plaintiff-
appellants and other inhabitants of the village. It was further the case that
defendant-respondent No.1 along with his brother/co-defendants had illegally
encroached upon the rasta as they wanted to put pressure upon the plaintiff-
appellants to sell their houses.
6. Written statement was filed by defendant-respondents No.1 and
2 stating therein that it was actually the plaintiff-appellants who had
encroached the passage by constructing their houses and trying to shift the
passage. It was further the case set up in the written statement that part of the
rasta had wrongly been made pacca by the Nagar Council as one of the
plaintiff-appellants namely, Zora Singh, was the Municipal Councilor and he
got the passage made pacca in Killa No.11/1 instead of the proper place
bearing Khasra No.2973. It was further admitted that the demarcation was
conducted but the demarcation was without any notice to the defendant-
RSA-4112-2019 and other connected cases -4-
respondents No.1 to 3 and it was prepared behind their back. It was further
the stand taken that no pacca points were fixed as per the instructions of the
Financial Commissioner, Punjab and as per the High Court Rules and Orders.
7. Replication was filed by the plaintiff-appellants reiterating the
averments made in the plaint and denying those of the written statement.
8. On the basis of the pleadings of the parties the following issues
were framed :
1. Whether the plaintiffs are entitled for mandatory
injunction, as prayed for ? OPP
2. Whether the plaintiffs are entitled for permanent
injunction, as prayed for ? OPP
3. Whether the suit is not maintainable in the present
form ? OPD
4. Relief.
9. The Trial Court vide judgment and decree dated 23.08.2017
dismissed the suit of the plaintiff-appellants. Aggrieved by the same three
separate appeals were filed by the plaintiff-appellants which appeals were also
dismissed by the First Appellate Court vide common judgment and decree
dated 13.10.2018. Hence, the present three separate regular second appeals by
the plaintiff-appellants.
10. The sole argument of the learned counsel appearing on behalf of
the plaintiff-appellants is that on the basis of the demarcation report it was
clear that the defendant-respondents No.1 to 3 had encroached upon the land
RSA-4112-2019 and other connected cases -5-
and that both the Courts have erred in dismissing the suit of the plaintiff-
appellants.
11. Heard.
12. In the present case the plaintiff-appellant namely, Zora Singh,
had stepped into the witness box as PW-1 and stated that the demarcation
report was signed by him as was the attendance sheet. PW-2, namely, Harpreet
Singh Pawar, Draftsman stepped into the witness box and deposed in his
cross-examination that at the time of preparing of the site plan he did not check
the Khasra Girdawari regarding the possession of the land. He further
admitted that the pacca point was fixed by just holding the location of pahi
and the pacca point was not shown in the site plan. It was further stated in the
cross-examination that the killas and the pahi shown in the site plan was not
made by him but were disclosed by the parties and that he did not verify the
possession at the spot. He further admitted having written regarding the area
on the statement of plaintiff-appellant Zora Singh. He also did not know which
mustil the killa numbers fell under. Both the Courts concurrently found that
the site plan, on the basis of which the suit was filed, was not prepared in
accordance with the High Court Rules and Orders. It is further to be noticed
that Bhupinder Singh, who stepped into the witness box as PW-3, admitted in
his cross-examination that no summons were issued to the defendant-
respondents No.1 to 3 regarding their presence. Learned counsel appearing on
behalf of the plaintiff-appellants has not been able to convince this Court that
the report on which sole reliance has been placed upon by the plaintiff-
RSA-4112-2019 and other connected cases -6-
appellants while filing the suit was prepared in accordance with law. The
impugned judgments and decrees do not suffer from any illegality.
13. In view of the above, no question of law, much less any
substantial question of law, arises in the present cases. The appeals, being
devoid of any merits, are accordingly dismissed. Pending applications, if any,
also stand disposed off.
25.09.2024 (ALKA SARIN)
Aman Jain JUDGE
NOTE : Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
