JUDGMENT
M.M. Kumar, J.
1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure 1908 (for brevity the Code) challenging judgment and decree dated 1.4.2005 passed by the learned Additional District Judge, Narnaul while accepting the appeal of the plaintiff-respondents. It is appropriate to mention that the Civil Judge had earlier dismissed the suit of the plaintiff-respondents vide his judgment and decree dated 17.11.1998.
2. Brief facts of the case are that the plaintiff-respondents instituted civil suit No. 940/1990 on 2.6.1990/26.11.1990 for permanent injunction against the defendant-appellants claiming that they were owners in possession of the suit land the defendant-appellants be restrained from interfering with their peaceful possession over ahata No. 176, ghar No. 397 comprised in khasra abadi 1947 BK. The suit was originally filed by one Chandu Ram alongwith Mam Chand, who are now being represented by the present appellants being their legal heirs. The trial court dismissed the suit holding that the plaintiff-respondents had failed to discharge the burden of proof showing that they were owners in possession of the suit land described in red colour in the site plan attached with the plaint. The site plan Ex.P2 in respect of ahata No. 176 ghar No. 397 and 98 are shown to be in the ownership of Mangtu, the predecessor-in-interest of the plaintiff-respondents. However, the trial court also found that the defendant-appellants were not able to establish that the suit property was part of ghar No. 232. Two reports of the Local Commissioner namely Ex.PW1/D and the other report dated 6.9.1998 were discarded by the trial court holding that the same were not prepared in accordance with the instructions of the Financial Commissioner as adopted by this Court. However, it was found that predecessor in interest of the plaintiff respondents Mangtu was owner of ghar No. 397 and 398 situated in ahata No. 176, Khasra abadi 1947 BK.
3. However, the question which was required to prove was whether the portion shown in red colour in the site plan attached with the plaint was part of that property namely ahata No. 176 ghar No. 397. The view of the trial court is discernible from the perusal of the findings recorded on the core issue as to whether plaintiff-respondents were owners in ahata No. 176 ghar No. 397 as per Khasra abadi 1947 BK. The view of the trial court in this regard reads as under:-
“13. Once the document Ex.P-2 is seen, there is no dispute that in respect of ghar Nos. 397 and 398. Mangtu s/o Laljit have been shown as owners and when the plaintiffs are their descendants as has come in their evidence, the plaintiffs are certainly owners in respect of Ahata No. 176, Ghar No. 397. However, it was for the plaintiffs to prove that the portion shown in red colour in the site plan attached with the plaint was part of Ahata No. 176, Ghar No. 397 and had they been successful in doing so, on the strength of their title, if the constructions were raised by the defendants near about 2.6.1990, a decree of grant of permanent injunction could have been granted in their favour and the constructions raised hurriedly by the defendants over portion of Ghar No. 397 could be ordered to be removed but lack of evidence on this score and the when the plaintiffs have also failed to produce Naksha Abadi of the village, issue No. is decided against the plaintiffs.”
4. The appellate court on appeal filed by the plaintiff-respondents appointed a Local Commissioner during the pendency of the appeal with the directions to demarcate the land in dispute to find out as to whether the disputed portion shown red in the site plan attached with the plaint is part and parcel of ahata No. 176, hose No. 397 or not. Sh. Hamir Singh, Tehsildar was examined as PW-3 in additional evidence who deposed that after his appointment as Local Commissioner he demarcated the suit land after giving due notice to the parties Ex. PW-3/A and he also prepared attendance sheet Ex.PW-3/B. He submitted the report Ex. PW-3/C. In the site plan Ex.PW-3/E, the disputed property has been marked as ABCD which is in possession of the plaintiff-respondents was marked as CDEF. He categorically stated that the defendant-appellants have encroached upon 796 feet at the spot. The demarcation undertaken by Sh. Hamir Singh, Tehsildar was found to be in accordance with the instructions of the Financial Commissioner. Revenue as adopted by this Court. On the basis of the aforementioned evidence the learned Additional District Judge found that the defendant-appellants had encroached upon the suit property which in fact is part of ahata No. 176 ghar No. 397 and it does not form part of ghar No. 232 which belongs to the defendant-appellants. It has also been found that plaintiff-respondents Chandu Ram was owner in possession of the suit property and after his death his heirs have become owners of the same.
5. The appellate Court also approved the finding recorded by the trial Court that ghar No. 397 and 398 were owned by the plaintiff-respondents and defendant-appellants had got nothing to do with the same. Therefore, on the basis of the findings that the plaintiff-respondents were owners of ghar No. 397 situated in ahata No. 176 square yards the encroachment by the defendants-appellants has been found to the extent of 796 feet.
6. The plea of the defendant-appellants asserting that they were in adverse possession was also rejected as the basic requirement to prove adverse possession has not been complied with. The construction which was stated to have been raised by the defendant-appellants was found to have been raised during the pendency of the suit. Accordingly, the suit of the plaintiff-respondents was decreed in their favour retraining the defendant-appellants from interfering with their ownership and possession. The defendant-appellants were further directed to demolish the construction raised by them over the disputed property at their own expenses within a period of two months from the date of decree and to handover the vacant possession to the plaintiff-respondents. Feeling aggrieved the defendant-appellants have approached this Court.
7. After hearing the learned counsel in details I am of the considered view that no question of law would arise for consideration by this Court warranting admission of this appeal under Section 100 of the Code. It has been concurrently found by both the courts below that ghar No. 397 located in ahata No. 176 khasra abadi 1947 BK is owned by the plaintiff-respondents but the appellate court has posed a question to itself in para 17 of its judgment as to whether the disputed portion shown in the site plan attached with the plaint is part and parcel of ahata No. 176, house No. 397 or not. In para 18 the learned appellate court has firstly recorded the finding that the plaintiff-respondents were owners of ghar No. 397 ahata No. 176. The aforementioned fact was based on the admission made by Sultan DW-4 one of the defendant-appellants who had admitted that they had no concern with ghar No. 397. It has further been found that defendant-appellants had failed to establish by adducing any evidence that suit property was part of ghar No. 232. On the contrary there was evidence on record produced by the plaintiff-respondents Ex.P-2 showing that their predecessor-in-interest Mangtu was owner in possession of ghar No. 397 and 398. During the pendency of the appeal Local Commissioner was appointed and Sis, Hamir Singh, Tehsildar was examined as PW-3 by way of additional evidence, On the basis of report submitted by the Local Commissioner, it was found that the defendant-appellants have encroached upon an area measuring 796 feet. The findings of the learned appellate court are discernible from the concluding part of para 19 which reads as under:-
“So, from the report of the Local Commissioner, it – is established that the defendants had encroached the suit property and the suit property is the part of Ahata No. 176 and Ghar No. 397 and it is not the part of Ghar No. 232 and the plaintiff Chandu Ram was the owner in possession of the suit property and after his death, his legal heirs have become owners of the same.”
8. It is well established that the question of encroachment of land is a pure question of feet and it would not give rise to any question of law. The report of the Local Commissioner Sh. Hamir” Singh, PW4 has been found to be consistent with the Financial Commissioner’s instructions as incorporated in the High Court Rules and Orders Volume 1, Chapter 1, Part M. It has been found by the appellate court as a fact that the defendant-appellants have encroached upon 796 square feet of land which in fact forms part of ghar No. 397. It is also well settled that the plea of adverse possession is an indirect admission of ownership of the plaintiff-respondents by the defendant-appellants. The defendant-appellants have miserably failed to plead the basic ingredients as required by law laid down by the Supreme Court in the cases of M.V.S. Manikayala Rao v. M. Narasimhaswami and Ors., and Ejas Ali Qidwi and Ors. v. Special Manager, Court of Wards. Balrampur Estate and Ors., A.I.R. 1935 Privy Council 53: and a Division Bench of this Court in the case of Mst. Bhago v. Deep Chand Harphul and Ors., A.I.R. 1964 Punjab 187. There are no pleadings to show when adverse possession commenced or that it was hostile, open and peaceful. Moreover, the question of adverse possession is a question of fact which would not give rise to any question of law. For the aforementioned view reliance can be placed on the judgments of the Supreme Court in M.V.S. Manikayala Rao’s case (supra) and Itohan Lal v. Nihal Singh, (2001) 8 S.C.C. 6. Therefore, there is no merit in this appeal and the same is liable to be dismissed.
9. Mr. Satbir Singh Godara, learned counsel had made a feeble attempt to attack the report of Sh. Hamir Singh, Tehsildar by urging that the same was not in consonance with the instructions for the guidance of commissioners which were issued by the Financial Commissioner on the motion of the Hon’ble Judges of this Court. One repeated queries by the Court as to which part of the instructions have been violated learned counsel has not been able to substantiate his argument any further. It is worthwhile to point out that the demarcation report of Shri Hamir Singh, Tehsildar, PW-4 has been found to be consistent with the aforementioned instructions as contained in Volume 1 Chapter 1. Part M of the High Court Rules and Orders. In the absence of any illegalities in the aforementioned report it is not possible to accept the submission made by the learned counsel and therefore, I have no hesitation to reject the same.
10. For the reasons stated above, this appeal fails and the same is dismissed. However, there shall not be any order as to costs.