R.S.A.No. 3443 of 2008 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3443 of 2008
Date of decision: 10.8.2009
Chand Ram
......Appellant
Versus
Suraj Bhan and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Rakesh Nehra, Advocate,
for the appellant.
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SABINA, J.
Plaintiff Suraj Bhan filed a suit for possession, which was
decreed by the Civil Judge (Jr.Divn.) Bahadurgarh vide judgment and
decree dated 24.12.2004. In appeal filed by defendants No.1 and 2,
the said judgment and decree were upheld by the Additional District
Judge-I, Jhajjar vide judgment and decree dated 4.3.2008. Hence,
the present appeal by defendant No.1.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
R.S.A.No. 3443 of 2008 2
“2. Briefly stated the facts of the case as
emanating from the pleading of the parties are that the
plaintiff and the defendants No.5 to 12 were owners in
possession of the plot No.387 measuring 4 kanals 1
marla comprised in khewat No.364/344 and Khatoni
No.463 situated within the revenue estate of village
Bhaproda, Tehsil Bahadurgarh as per the jamabandi for
the year 1996-97. The defendants No.1 to 4 were
alleged to have encroached upon this plot on the area
shown with letters ABCDE, EDGF, DCHG and CIH
respectively in the site plan Ex.P3. They were alleged to
have raised illegal structures thereon in December 1999.
When they did not remove the illegal structure therefrom
the plaintiff brought the present suit seeking a decree for
possession of the above area allegedly encroached upon
by the defendants No. 1 to 4.
3. The defendants No. 1, 2 and 3-A having put up
appearance filed their written statement. Therein,
besides raising certain legal objections they pleaded
that they did not encroach upon any portion of the
above plot No.387. They claimed themselves to be
owners in possession of the above portions. They
further pleaded that these portions had fallen to their lot
in the year 1953 and since that day they have been in
R.S.A.No. 3443 of 2008 3possession thereof after raising the construction
thereon. They further pleaded that the alleged portions
formed part of plot No.1497 and the plaintiff and the
proforma defendants No. 5 to 12 have nothing to do
with the title or possession of these portions. With
these averments these defendants prayed for dismissal
of the suit. Defendants No. 5 to 12 in their written
statement admitted the claim of the plaintiff in toto.
Defendant No.4 also admitted the claim of the plaintiff
in toto as per his statement given after putting up
appearance before the lower court.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is entitled to a decree for
possession in his favour and against the defendants on
the grounds as alleged in the plaint? OPP
2. Whether the suit of the plaintiff is not
maintainable in the present form? OPD
3. Whether the suit is bad for mis-joinder and
non-joinder of necessary parties? OPD
4. Whether the plaintiff has nocause of action to
file the present suit? OPD
5. Whether the plaintiff has no locus-standi to file
the present suit? OPD
R.S.A.No. 3443 of 2008 4
6. Whether the plaintiff has not come in the court
with clean hands? OPD
7. Whether the defendants are owners in
possession of a suit land since 1953 from the time of
partition of abadi of village, as detailed in para No.4 of
the written statement ? OPD
8. Relief. “
After hearing learned counsel for the appellant, I am of
the opinion that the instant appeal is devoid of any merit.
The case of the plaintiff was that the plaintiff and
defendants No. 5 to 12 were owners of the plot No.387. Defendants
No. 1 to 4 had, however, encroached upon the plot over the area
marked with letters ABCDE, EDGF, DCHG and CIH as shown in the
site plan Ex.P-3. In order to substantiate their case, plaintiffs
examined PW-4 Raghbir Singh, Halqa Girdawar. The said witness
deposed that on 3.9.2000, he was posted as Halqa Girdawar in
village Bhaproda . He had demarcated plot No.387 in the presence
of the parties to the suit, Halqa Patwari and other respectables of the
village. The said witness proved his report Ex.P4, attendance sheet
Ex.P-5 and site plan Ex. P-6. PW-4, in his cross-examination,
deposed that the defendants had not affixed their signatures on the
report. The said witness in his report opined that there was illegal
encroachment on the part of defendants Chand Ram, Dharambir and
Tekan.
R.S.A.No. 3443 of 2008 5
Learned trial Court, after perusing the attendance sheet
Ex.P-5, has observed that as per the same, the demarcation was
conducted in the presence of respectables of the village apart from
the parties to the suit. In order to counter the said report,
defendants, on the other hand, examined DW-4 Satpal Singh,
Kanungo, who has submitted his demarcation report Ex.DW 4/A. As
per the said witness, construction had been raised by the
defendants in plot No.1497/1 and 2. However, the said witness
admitted that he had not given any notice to the plaintiff at the time of
demarcation. In these circumstances, the learned Additional District
Judge, rightly held that no reliance could be placed on the reports
submitted by DW-4 as the demarcation had been done at the back of
the plaintiff. The finding of fact arrived at by both the Courts below
after appreciating the evidence on record, calls for no interference by
this Court.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
August 10, 2009
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