JUDGMENT
N.K. Kapoor, J.
1.This is defendant’s appeal against the judgment and decree of the lower appellate court whereby judgment and decree of the trial court has been modified thereby decreeing the suit of the plaintiff as prayed for.
2. Plaintiff filed a suit for mandator injunction directing defendant No. 1 to demolish the wall built by him on land shown as ABCD in the site plan which forms part of Khasra Nos. 117 and 118 of Khewat No. 75/100 and 74/99 respectively in Mauza Kharar, Hadbast No. 185, Tehsil Kharar, Distt. Rupnagar. According to the plaintiff, he is exclusive owner of land bearing Khasra No. 117 (3 Marlas) and also owns another piece of land measuring 5 Marlas comprised in Khasra No. 118 jointly with his four sisters (now arrayed as defendants). According to the plaintiff, Mehma Singh owns some area adjoining to the plots bearing Khasia No. 117 and 118. In June, 1976 defendant No. 1 is stated to have raised a wall to a height of 6-1/4 feet upon the land forming part of Khasra Numbers 117 and 118 this way encroaches upon an area measuring 38 feet x 9 inches which belongs to the plaintiff. Hence, the present suit.
Defendant No. 1 filed written statement and controverted the various allegations levelled in the plaint regarding encroachment alleged to have been made by the answering defendant. The plea of estoppel by conduct was also raised.
On the pleading of parties, following issues were framed: –
(1) Whether the plaintiff, alongwith defendant Nos. 2-to 5, is the owner in possession of Khasra No. 117/118 ? OPP.
(2) Whether the site ‘ABCD’ on which the wall has been constructed by defendant No. 1 forms part of Khasra Nos. 117 and 118 ? OPP.
(3) Whether the plaintiff is estopped by his acts and conduct to file the present suit as alleged in para No. 3 of the additional objections ? OPD.
(4) Whether the plaintiff is entitled to the injunction as prayed for ? OPP.
(5) Relief.
3. Under issue No. 1 the trial court held that the plaintiff is owner in possession of land bearing Khasra No. 117 and a joint owner of land along with defendants No. 2 to 5 in respect of Khasra No. 118. This issue was accordingly decided in favour of the plaintiff. Under issue No. 2, the trial court came to the conclusion that the plaintiff has not been able to establish conclusively that the site ABCD on which wall has been constructed entirely forms part of Khasra Nos. 117 and 118. The trial court thus held that as per material on record it can be taken that the site in dispute forms part of Khasra Nos. 117, 118 and 119. Under issue No. 4, the court held that the defendant has failed to prove that the plaintiff is estopped by his act and conduct to file the present suit. Under issue No. 3, the court held that since plaintiff has failed to prove that he along with defendants No. 2 to 5 are exclusive owners of the site falling underneath the wall in dispute, the plaintiff is not entitled to the mandatory injunction. Resultantly, the trial court held that the wall in dispute shall be jointly owned by the parties entitling them to the benefit of incidental to the joint ownership of the wall ABCD as given in the site plan Exhibit P1.
4. Feeling dissatisfied with the judgment and decree of the trial court, plaintiff preferred appeal and the contesting defendant too filed cross-objections. Both the matters were taken up together and decided vide judgment and decree dated 14.5.1981. The lower appellate court firstly examined the objections raised by the defendant. Exhaustively dealing with objections in the light of oral and documentry evidence on record, the lower appellate court found no substance in the same. On the other hand, the court while examining the case of the plaintiff’ came to the conclusion that the report of the Local Commissioner Exhibit P-4 merits acceptance in toto. Consequently, the court held that in view of the report of the Local Commissioner, the site in dispute under the wall measuring 38 feet x 9 inches is the property of the plaintiff which forms part of Khasra No. 117 and 118 only. The appeal was consequently accepted, thus decreeing the suit of the plaintiff, so directing defendant No. 1 to demolish the wall built by him on the land shown as ABCD in the site plan.
5. The crux of the matter falls within a very narrow compass i.e. whether the wall ABCD forms part of Khasra Nos. 117 and 118 or that any part of this land forms part of Khasra No. 119.. Thus, the precise oint could be determined on spot inspection by demarcation of the disputed area. The trial court with a view to ascertain this factual position, ordered for examination of the site and its demarcation by appointing a Local Commissioner. In pursuance of the order of the court, one Durga Singh, Kanungo, was appointed as a Local Commissioner to visit the site and demarcate the same. Local Commissioner visited the spot in the presence of the parties and before embarking upon the precise ‘controversy referred to him found out certain fixed points are envisaged by the instructions issue to the Revenue Officers regarding demarcation of land and the adjacent Khasra Numbers. The report of the Local Commissioner Exhibit P4 is quite exhaustive and clearly bring out the existing site in dispute as well as other construction raised upon the land surrounding it. The Local Commissioner while determining the exact location of the site in dispute has made reference to existence of a permanent structure like house with a view to find out whether the disputed area falls in line with other existing structure. Besides it, the Local Commissioner has taken pains to verify the exact length and breadth co-relating it to the other property situate in other Khasra Number. It is thereafter that the Local Commissioner has come to the conclusion that the wall in dispute is 18 feet x 8 inches which has an height of 6-1/(4) feet and the same falls in line with the other existing structure of the plaintiff, namely, his house. Accordingly, the Local Commissioner submitted the report that the same forms part of Khasra No. 117.
6. Assailing the correctness of this report, counsel for the, appellant argued that though objections were raised to the report, yet no opportunity was granted to the defendant to substantiate the same and so on this ground alone this report ought to have been ignored by the court below. Otherwise too, the report is not in conformity with the rules and the procedure as is normally followed while demarcating the boundaries of the land. No doubt, further opportunity has not been granted to the defendant-appellant to adduce evidence in support of the objections but that by itself is no ground to discard the report of the Local Commissioner appointed by a court for purpose of demarcation. In fact, the lower appellate court after noticing this objection has threadbare examined the report of the Local Commissioner and finding substance in the same accepted it.
7. Learn counsel for the appellant hereto has not been able to raise any meaningful argument persuading me to reverse the finding of the lower appellate court. A bare look at the site plan annexed with the plaint Exhibit P-1 clearly bring out the falsity of the stand now taken by the defendant-appellant. The wall ABCD is in line with the built up portion of Charan Singh. This coupled with the measurement of the adjoining plot/plots i.e. Khasra No. 119 and 120 go a long way in proving that the site in dispute forms part of Khasra No. 118 and so is the exclusive property of plaintiff and proforma defendants. Since the matter remained pending in this court for almost 16 years, an attempt was made to persuade the plaintiff as to whether he is agreeable to treat the disputed wall as a common wall on payment of suitable compensation which he however, declined. Thus finding no merit in this appeal, the same is dismissed. No order as to costs.