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2010 DIGILAW 203 (PNJ)

Jai Bhagwan v. Kitab Kaur

2010-01-11

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1. This Regular Second Appeal is directed against judgments and decrees dated 25.3.2009 and 29.9.2009 passed respectively by the Civil Judge (Senior Division), Rewari (hereinafter described as `the trial Court) and the additional District Judge, Rewari (referred to hereinafter as `the first appellate Court) whereby the suit of the plaintiff-respondent was decreed and the appeal of the defendants-appellants was dismissed. The respondent had filed a suit for possession against the appellants pleading that she is owner in possession of the land measuring 1 kanal 2 marlas gair mumkin gait situated in village Gadla, Tehsil and District rewari, fully detailed in paragraph 1 of the plaint; that she had been using the same as gatwar; that the appellants are having their properties on the northern side of the suit property; that they have no concern with the same; that about two months back, the appellants intended to raise construction on the disputed plot whereupon demarcation was got done on 31.5.2003; that the appellants were found in illegal occupation of the plot in dispute in eastern corner; that several requests were made to the appellants to clear the land in question but all in vain and hence, she was constrained to approach the Court. 2. Upon notice, the appellants put in appearance and filed their written statement resisting the suit. It was pleaded that they were owners in possession of the land comprised in khewat no.54 in view of the demarcation report dated 2.3.2002 and that they had not encroached upon any portion of the land owned and possessed by the respondent. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to the possession of the disputed plot as detailed in para 1 of the plaint after demolishing the encroachment of the defendants in the form of construction existing thereon to the extent of 10 x 2 karam as mentioned in the Local Commissioner Report by way of decree of possession on the basis of her title?opp 2. Whether the plaintiff has no locus standi to file the present suit?opd 3. Whether the suit of the plaintiff is not maintainable in the present form?opd 4. Whether the suit of the plaintiff is barred by limitation?opd 5. Whether the plaintiff is estopped from filing the present suit?opd 6. Whether the suit is liable to be dismissed under Order 7 Rule 11 cpc?opd 7. Whether the suit of the plaintiff is not maintainable in the present form?opd 4. Whether the suit of the plaintiff is barred by limitation?opd 5. Whether the plaintiff is estopped from filing the present suit?opd 6. Whether the suit is liable to be dismissed under Order 7 Rule 11 cpc?opd 7. Whether the plaintiff has no cause of action to file the present suit?opd 8. Relief. 3. Both the Courts concluded that demarcation report dated 31.5.2003 revealed that encroachment had been made by the appellants on plot no.202 which belongs to the respondent, while demarcation report dated 2.3.2002 upon which the appellants were placing reliance showed that at the time when the said report was prepared, no construction was existing and whatever construction had been raised, was raised afterwards which was reflected in the demarcation report dated 31.5.2003 (Exhibit PW2/a ). The suit was accordingly decreed and the appeal of the appellants was dismissed and aggrieved by the same, the present second appeal has been filed. 4. Learned counsel for the appellants has contended that the findings recorded by the Courts below are perverse and the demarcation report, Exhibit pw2/b could not have been relied upon as the appellants were never associated with the same. He, thus, submitted that the impugned judgments deserve to be set aside. 5. I have thoughtfully considered the contention/ submission of the learned counsel for the appellants and have gone through the impugned judgments. 6. Both the demarcation reports, Exhibits PW2/a and DW5/a were carried out by Heera Singh, retired Sadar Kanungo. He categorically deposed when stepped into witness box that when report Exhibit DW5/a was prepared, there was no encroachment by any party on the land in question and no construction existed on khasra nos.54 and 55. He further stated that on 2.3.2002, these khasra numbers were vacant, whereas at the time of conducting demarcation on 31.5.2003, he found encroachment having been made by the appellants on the land belonging to the respondent. In this view of the matter, when a pure question of fact has been determined by the Courts below on the basis of the evidence on record, the contention of the learned counsel for the appellants that the appellants were not associated at the time of demarcation conducted on 31.5.2003 is without any substance. In this view of the matter, when a pure question of fact has been determined by the Courts below on the basis of the evidence on record, the contention of the learned counsel for the appellants that the appellants were not associated at the time of demarcation conducted on 31.5.2003 is without any substance. Moreover, the appellants made no attempts to get their property demarcated again or get determined the extent of encroachment, if any, on the land of the respondent afresh. During the course of hearing, this Court, in order to do substantial justice, put a straight-forward question to the learned counsel for the appellant as to whether the appellants were willing to get a Local Commissioner appointed to get demarcation done afresh, but subject to the condition that if the encroachment was found existing on the land of the respondent, they shall be visited with costs for having wasted the time of the Court. Upon this, he submitted that the appellants were not agreeable for getting a fresh demarcation done. 7. In view of this and for the reasons which have been recorded above, when simple question of fact has been determined and no substantial question of law has been shown to have arisen for consideration of this Court, the instant appeal is dismissed in limine being devoid of any merit. All pending civil miscellaneous applications are also dismissed in view of the above.