Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1258 (PNJ)

Balwant Rai v. Kartar Chand

2008-07-23

T.P.S.MANN

body2008
JUDGMENT T.P.S. MANN, J. - Suit for permanent injunction filed by plaintiff/respondent so as to restrain the defendant/appellant from raising any sort of construction or encroaching the land measuring 3 Kanals 1 Marla comprised in Khewat Khatoni No. 198 min./267 min. Khasra No. 188 (3K-1M) situated at village Kherki Manakpur Tehsil Naraingarh District Ambala and for mandatory injunction directing the defendant/appellant to deliver the vacant possession of his illegal encroachment measuring 4 Marlas as per demarcation report dated 11.6.1994 was decreed by learned Additional Civil Judge (Senior Division), Ambala City on 23.10.2003. Aggrieved of the same, the defendant/ appellant filed an appeal, which was dismissed with costs by learned Additional District Judge, Ambala on 21.2.2005. He is now before this Court in a second appeal under Section 100 of the Code of Civil Procedure. 2. At the very outset, learned counsel for the appellant submitted that he confines his prayer in the present appeal only in respect of the mandatory injunction granted by the learned lower Courts, whereby he has been asked to deliver vacant possession of 4 Marlas, which was said to be under his illegal encroachment. 3. The plaintiff/respondent had relied upon demarcation report dated 11.6.1994, which is available on the file as Ex. P.2. The demarcation in question was carried out by PW3 Jagir Singh, who was a retired Kanugo. A perusal of the demarcation report would show that the defendant, Balwant Rai, was present at the spot when the demarcation proceedings were being carried out. 4. Learned counsel for the appellant submitted that the appellant was not present at the time of the demarcation, as the report did not carry his signatures. 5. A perusal of the statement of DW4 Ram Saroop would show that the defendant was present at the spot at the time of the demarcation. Besides, a number of villagers were also present. The demarcation was carried out at the instance of the plaintiff. The same was correct as per the spot inspection. Even the defendant had accepted the same. Once the defendant’s own witness admitted that the defendant was present at the time of the demarcation and he accepted the same, he cannot be now heard saying that he was not present. 6. The same was correct as per the spot inspection. Even the defendant had accepted the same. Once the defendant’s own witness admitted that the defendant was present at the time of the demarcation and he accepted the same, he cannot be now heard saying that he was not present. 6. The encroachment made by the defendant over 4 Marlas of land, which was depicted in the demarcation report dated 11.6.1994 Ex.P.2 has also been admitted by DW3 Mirya, DW4 Ram Saroop, DW5 Charanjit and DW6 Fatiya, who in their respective affidavits submitted before the learned trial Court by way of their examination-in-chief clearly stated that the land of the plaintiff was in possession of the defendant. The exact words used by them in their respective affidavits are reproduced here-in-below:- “………and now land of Kartar Chand is in possession of Balwant Rai.” 7. Learned counsel for the appellant stated that the above quotation was a result of typographical error, as what those witnesses wanted to convey was that no land of Kartar Chand was in possession of Balwant Rai, but error crept in when instead of word ‘no’, word ‘now’ was mentioned in those affidavits. 8. All these affidavits were not typed out at the instance of the learned trial Court. They had been got prepared by the defendant beforehand, i.e. on 29.7.2002 and duly attested by the Oath Commissioner. These affidavits were produced later on. For illustration, DW 3 Mirya appeared before the learned trial Court on 12.9.2002 and tendered his affidavit in evidence by way of his examination-in-chief. The last but one witness DW6 Fatiya appeared before the learned trial Court on 3.4.2003. As mentioned above, their affidavits have been prepared and attested on 29.7.2002. It cannot be said that the word ‘now’ appeared in these affidavits on account of some typographical error. At no stage of the trial did the defendant ever object to the contented of the affidavits for the reason that they contained any typographical error. 9. The concurrent findings of facts arrived at by the learned lower Courts are based on proper appreciation of the evidence led by the parties. These findings do not suffer from any illegality or infirmity. For that reason they cannot be disturbed/reversed in a second appeal. None of the substantial questions of law, as formulated by learned counsel for the appellant arise for consideration. 10. These findings do not suffer from any illegality or infirmity. For that reason they cannot be disturbed/reversed in a second appeal. None of the substantial questions of law, as formulated by learned counsel for the appellant arise for consideration. 10. As the appeal is without any merit, it is, therefore, dismissed. No costs.