RSA No. 3088 of 2009 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 3088 of 2009
Date of Decision: 21.8.2009
Mohinder Pal Singh Samundri ......Appellant
Versus
Smt. Janki Devi .......Respondent
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Sunil Agnihotri, Advocate, for the appellant.
HEMANT GUPTA, J. (Oral).
The defendant is in second appeal aggrieved against the
judgment and decree passed by the Courts below, whereby the suit of the
plaintiff for possession of land measuring 1 kanal 6 marlas was decreed in
its entirety by the learned trial Court, but such decree was modified by the
learned first Appellate Court, thereby maintaining the same in respect of the
land measuring 19 marlas only.
It is the case of the plaintiff that the land of the defendant is
adjacent to the land of the plaintiff on the western side, but the defendant
has encroached upon the land measuring 1 kanal 6 marlas of her land. To
demarcate the property of the parties, Shri Sumittar Singh, retired Girdawar
was appointed as Local Commissioner by the learned trial Court. The Local
Commissioner has submitted his report Exhibit P.3.
RSA No. 3088 of 2009 (2)
Both the Courts have relied upon the said report of the Local
Commissioner to return a finding that the appellant-defendant has
encroached upon the land of the plaintiff. It has been found that the Local
Commissioner has carried out the process of demarcation after fixing three
pucca points and the process of demarcation is in accordance with the
instructions issued by the Financial Commissioner.
Learned counsel for the appellant in the present second appeal
has raised two fold arguments. Firstly, it is contended that the Local
Commissioner has visited the site in dispute on 9.5.1999 in the absence of
the appellant and has given report on the aforesaid date. It is, thus,
contended that the visit of the Local Commissioner on 9.5.1999 and to give
report on the aforesaid date violates the principles of natural justice.
Secondly, it is argued that the Local Commissioner, while appearing as
DW2 has admitted that he has not demarcated the land of the defendant.
Thus, it is argued that demarcation of the land of the plaintiff alone will not
be sufficient to return a finding that the defendant has encroached upon the
land of the plaintiff.
Both these arguments have been considered in detail by the
learned first Appellate Court. It is found that though the Local
Commissioner has visited the site in dispute on 9.5.1999, but he has not
taken any action on that day. Mere visit to the site in dispute on 9.5.1999 by
the Local Commissioner, cannot be said to have caused any prejudice to the
rights of the appellant. It has been further found that the Local
Commissioner has been cross-examined at length spreading over five
hearings, therefore, the mere fact that the Local Commissioner has visited
the site in dispute on 9.5.1999 is not sufficient to discard his report.
RSA No. 3088 of 2009 (3)
The argument that the Local Commissioner has admitted that
he has not demarcated the land of the defendant, has also been considered
by the learned first Appellate Court and found that in fact, in the report
Exhibit P.3, it has been stated that after fixing three pucca points, he
measured the land of the plaintiff as well as the defendant. It is found that
one line in the cross-examination is not sufficient to rebut the report of the
Local Commissioner, which gives the details of demarcation of the land of
the plaintiff as well the defendant.
The findings of the Courts below are based on the report of the
Local Commissioner, who has been cross-examined at length. I do not find
that the findings recorded by the Courts below suffer from any patent
illegality or irregularity, which may give rise to any substantial question in
the present second appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
21-08-2009
ds