Kusum Lata & Ors. v. Amar Kaur & Ors.

Mr. Gurdial Singh Jaswal, Advocate for the appellants. Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for permanent injunction restraining respondent No.1 from encroaching upon any portion of the suit land or in the alternative suit for possession, was dismissed. As per the averments, the appellants along with other co- sharers were owners in possession of suit land measuring 1 kanal 3 marlas. The remaining co-sharers except Sital Parshad had sold their share in favour of the plaintiffs who were the owners of 11/12 share in the suit property. Sital Parshad, co-sharer, had sold his 1/12 share in the suit property in favour of defendant-respondent No.2 Bhag Ram. It was alleged that defendant-respondent No.1 had no right or interest in the suit property but when the plaintiffs were out of station, respondent No.1 tried to encroach upon the suit land. Respondent No.1 was owner to the extent of 9 marlas of land bearing khasra No.11/2/1 which adjoins to the eastern side of the land in dispute. Since defendant-respondent No.2 wanted to take forcible possession by raising construction on the land comprised in Khasra No.11/2/2 belonging to the plaintiffs, the present suit was filed. RSA No.230 of 2010(O&M) 2 Upon notice, respondent No.1 appeared and filed written statement raising various preliminary objections. On merits, it was pleaded that respondent No.1 executed the sale deed in respect of 1 ½ marlas only of the property from her ownership in favour of defendant-respondent No.2. It was further submitted that defendant-respondent No.1 had not encroached upon any property owned by the plaintiffs and the construction was raised with the consent of the plaintiffs. Other facts pleaded in the plaint were denied and dismissal of the suit was prayed. Respondent No.2 filed separate written statement admitting that the plaintiff-appellants along with respondent No.2 were co-sharers and were owners of the suit property. He also admitted the contents of the plaint. Parties led their respective evidence in support of their claim. The trial Court after hearing learned counsel for the parties and going through the record on the file, decreed the suit of the plaintiff- appellants for permanent injunction; however, dismissed the suit with regard to possession of the land in dispute. Feeling aggrieved with the impugned judgment and decree passed by the trial Court, it was contended by the plaintiff-appellants before the Lower Appellate Court that during the pendency of the suit it had transpired that respondent No.1 was not owner of 9 marlas of land comprised in Khasra No.11/2/1 as she had purchased only 8 marlas of land and out of the same, she had sold 1 ½ marlas of land in favour of respondent No.2 on 22.12.1995 whereas in the revenue record, Amar Kaur was shown to be owner of 9 marlas of land and thus, the appeal was liable to be accepted and the appellants were entitled to a decree of possession for the land in possession of respondent No.1. However, the Lower Appellate Court after noticing the fact that the application for amendment RSA No.230 of 2010(O&M) 3 of the plaint filed by the appellants was rejected vide order dated

17.12.2002 and the same had become final and that the plaintiff-appellants had not led any evidence in order to prove that any encroachment of land was ever made by respondent No.1 during the pendency of the present suit and neither there was any evidence on record, dismissed the appeal. Still not satisfied, the plaintiff-appellants have filed the instant appeal challenging the judgment and decrees of the Courts below on the ground that the dispute between the parties was encroachment of land which could be resolved only by appointment of a Local Commissioner to measure the spot in accordance with the High Court Rules and Orders. However, the Courts below which were duty bound to impart justice by appointing another Local Commissioner for demarcation have failed to exercise the jurisdiction vested in them and have dismissed the suit on wrong assumptions. Thus, the judgment and decrees of the Courts below are liable to be set aside and the following substantial question of law arises in this appeal: “(i) Whether the appellate court is justified to hold that no Local Commissioner can be appointed once the application for appointment of Local Commissioner and no revision against the said order filed? (ii) Whether the purchaser of share in particular Khasra number can enlarge his right to occupy in that khasra number by making forcible encroachment from other co-sharer holdings in that particular Khasra number? (iii) Whether the courts are not duty bound to call for second report of Local Commissioner, when the first Local Commissioner appointed by the court failed to RSA No.230 of 2010(O&M) 4 submit report in accordance with Punjab and Haryana High Court Rules and Order? (iv) Whether the dispute regarding Hadd Shikni cannot be resolved by oral evidence or it can be solved only by Revenue Staff after consulting record measuring spot in accordance with Punjab and Haryana High Court Rules and Orders? (v) whether the findings recorded by the Courts below are perverse and illegal as the same are not in accordance with law?” I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. The plaintiff-appellants had filed the present appeal alleging that they were owners in possession of land measuring 1 kanal 3 marals bearing Khasra No.11/2/2 and respondent No.1, who was trying to encroach upon the same, be restrained from taking forcible possession of the suit property of the appellants by raising construction on the land comprised in Khasra No.11/2/2 and in the alternative, suit for possession of the said land measuring 1 kanal 3 marals be decreed. On appreciation of evidence, the trial Court found that there was no evidence that respondent No.1 had encroached upon any property belonging to the plaintiff- appellants and in spite of the fact that, findings on issues No.1 and 2 were recorded against the plaintiff-appellants yet the trial Court found that the plaintiff-appellants were entitled to the injunction, as prayed. It may also be noticed that before the Lower Appellate Court, the case of the appellants was that during the pendency of the suit, they had come to know that respondent No.1 was owner to the extent of only 6 ½ marlas of land comprised in khasra No.11/2/1. However, it may be noticed that it is not RSA No.230 of 2010(O&M) 5 their claim that they are owners of any portion of land comprised in Khasra No.11/2/1 and their claim was only to the extent of their land comprised in khasra No.11/2/2. Even if respondent No.1 was owner of land less than 9 marlas as pleaded by the plaintiffs, they are not entitled to the possession of any land comprised in Khasra No.11/2/1. Moreover, the appellants had also moved an application for amendment of the plaint which was declined by the trial Court. Though the appellants had raised an objection before the Lower Appellate Court in this regard, however, no such argument has been raised before this Court. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. March 26, 2010 (RAKESH KUMAR GARG) JUDGE