High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 9 9 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 121 Shiv Narain der Dharamender RSA-2898-2022(O&M) Date of decision: 07.04.2025 Vs. ...Appellant(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Manish Giri, Advocate Mr. Chanderhas Yadav, Adv for the appellant. ate for Advocate Mr. Anmol Rattan S. Dhillon for the respondent/caveato illon, Advocate eator. NIDHI GUPTA, PTA, J. *** The plaintiff is in second a nt nd appeal against the concurrent judgments an s and decrees of the Courts below he low whereby the suit filed by the plaintiff seekin eeking mandatory injunction, direct ve irecting the defendant to remove the constructi uction allegedly made by him above he bove 5 feet; and possession of the land shown i n in the site plan; along with re ion h relief of permanent injunction restraining the g the defendant from raining any fu on, y further construction thereupon, has been dism low. dismissed by both the Courts below. 2. The parties shall hereinaft eir inafter be referred to as per their status before t
Legal Reasoning
ore the learned trial Court i.e. the a nd he appellant as the “plaintiff” and the responden dent as “the defendant”. 3. Case as pleaded by the pl he e plaintiff in the plaint is that he was co-owner ner in khewat No.465/411 khatau 16 atauni No.552 khasra No.226/16 SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) measuring 0 k 0 kanal 11 marla. On 24.01.2013, Page 2 of 9 9 (cid:1) ed 13, the defendant had purchased plot measurin uring 211 square yards from Chotu of hotu Ram. Said house was part of khasra No.226 .226/17 measuring 0 kanal 11 mar of marla. Eastern side of the wall of the plaintiff tiff is the western wall of the ad the defendant. Chotu Ram had constructed h d his house after purchasing the sa ed e same vide registered Sale Deed No.1282 date dated 17.08.1982. As per the p rd e plaintiff, the Revenue Record pertaining to k to khasra Nos.226/16 and 226/17 he /17 could not be produced as the same has bee been destroyed in Jat Agitation. tiff n. It was pleaded by the plaintiff that while pu e purchasing the house from Cho he Chotu Ram on 24.01.2013, the defendant ha had illegally mentioned the eas as eastern wall of the plaintiff as common wal wall. The defendant had threat ion reatened to raise construction thereupon for for which he had no right. Even Pa it n Panchayat was convened and it was decided ded that dispute could be resol he esolved by demarcation of the respective plo plot. Thereafter, they had got thei ed their respective plots demarcated through Tehsi ehsildar Beri who submitted his r at is report and it was found that defendant had had illegally encroached about 6 fe he 6 feet of land of the plaintiff. The plaintiff had r ad requested the defendant to rem nt remove the illegal encroachment and unauthor thorised possession from the prop he roperty in dispute, however, the defendant had had refused to do so. Hence, the he the present suit was filed by the plaintiff on 05 n 05.05.2016. 4. Upon notice, the defendan ing dant had resisted the suit by filing written statem atement. Besides formal objections ed tions, the defendant had pleaded SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) that the easte astern wall of the property in dispu Page 3 of 9 9 (cid:1) tu dispute was constructed by Chotu Ram in 1982 a 82 and not by father of plaintiff in he f in 1980 as wrongly stated in the plaint. In 1982 1982 Chotu Ram had constructed on ted the boundary wall himself on the land of the f the plaintiff and other co-sharers - ers, with the consent of actual co- sharers and ow d owners of property in dispute as to e as they were not in a position to invest the mon money on boundary wall. It was de ey s decided between them that they would raise co se construction towards their side u by ide up to 7 inches on the wall by leaving 7-inc inch wall for another. The ny e defendant never raised any construction, , rather he took the possession o of on of the house after execution of Sale Deed dat dated 24.01.2013 and since then ver hen, no construction whatsoever has been rais raised by him on the property in as y in dispute. The Sale Deed was executed in fa in favour of the defendant by the ve ing e vendor by correctly mentioning the facts qua t ua the joint wall. It was further ple to r pleaded that the plaintiff used to tether his an animals in plot No.224, and the he the plaintiff was not using the property in di in dispute as gher. Demarcation of on of the plaintiff is not binding on the defendant dant as no intimation was given to he n to him. It was denied that the defendant wa was in possession of any land ly, and of the plaintiff. Accordingly, dismissal of th of the suit was prayed for. 5. In replication, the plaint nts laintiff reiterated the averments made in the pl e plaint and denied those made in t e in the written statement. 6. On the basis of pleadings o es ngs of the parties, following issues were framed b ed by the learned trial Court vide or e order dated 14.03.2017:- SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) “1. Whether the plaintiff is entitle Page 4 of 9 9 (cid:1) on, ntitled to the relief of declaration, permanent injunction and ma mandatory the injunction on the grounds as averred in the plaint? O int? OPP. 2. Whether the suit of the plaint the laintiff is not maintainable in the present form?OPD 3. Whether the plaintiff has no the s no cause of action to file the present suit?OPD 4. Relief.” 7. On the basis of pleading ary adings and oral & documentary evidence add adduced before it, the learned tr o.1 d trial Court decided issue No.1 against the pl e plaintiff; issues No.2 and 3 in fa se in favour of the plaintiff as these issues were n re not pressed by counsel for the ts. the defendant during arguments. Accordingly, v ly, vide judgment and decree dated rial ated 02.05.2019, the learned trial Court dismisse issed the suit of the plaintiff with he ith costs. The appeal filed by the plaintiff was d as dismissed by the learned Distric nt strict Judge, Jhajjar vide judgment and decree da e dated 28.09.2022. Hence, present sent second appeal. 8. It is submitted by learned at rned counsel for the plaintiff that the learned Co d Courts below are in patent error as rror in non-suiting the plaintiff as they have faile failed to take into consideration tha of that in the demarcation report of Local Commis missioner, it was found that defen es fendant has encroached 6 inches towards the p he plot of plaintiff. The said fact wa he t was not in the knowledge of the plaintiff prior rior to the present demarcation by L me by Local Commissioner. The same also deserve rves to be given to the plaintiff. Fu he f. Further the eastern wall of the SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) plaintiff is hav having length of 100 feet, as well Page 5 of 9 9 (cid:1) he ell as 6-inch land along with the same towards ards the plot of defendant also bel me belongs to plaintiff but the same has been enc encroached by the defendant. In ns, In support of his contentions, learned coun ounsel relies upon judgment of in of Hon’ble Supreme Court in “Mallavva & A & Another Vs. Kalsammanavara Ka gal ra Kalamma (Since Dead) By Legal Heirs & Ors.” L rs.” Law Finder Doc ID # 2676069. he . It is accordingly prayed that the impugned Jud Judgments and decrees suffer from to from material error and deserve to be set aside. 9. Learned counsel or for the nt respondent/defendant appearing on C on Caveat opposes the prayer made nd ade on behalf of the plaintiff and submits that i at it is a categoric finding on reco of record that demarcation report of the Local Com Commissioner was flawed as the r ed. he rules have not been followed. Moreover, adm admittedly defendant was not asso er, associated with the same. Further, the suit is bar barred by limitation as the wall w in all was admittedly constructed in 1982; wherea ereas the Civil Suit was filed by t ed by the plaintiff in 2016. Learned counsel accord cordingly prays for dismissal of the of the present appeal. In support of his contention ntions, learned counsel relies upo in upon judgment of this Court in “Haryana Wa Wakf Board Vs. Asha Rani & An # Another” Law Finder Doc ID # 813946, where herein it has been held as under:- “A. Civil Procedure Code, 1908, O urt 08, Order 26, Rule 9 - High Court Rules and Orders Volume 1, C cal 1, Chapter I - Report of Local Commissioner regarding Dema emarcation of Boundary - If If SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) defendant is not associated at tim Page 6 of 9 9 (cid:1) ort t time of demarcation, such report of Local Commissioner has to be d be discarded. B. Constitution of India, 1950 Art de, 0 Article 227 Civil Procedure Code, 1908, Order 26, Rule 9 - Dismiss nd smissal of suit for possession and mesne profit on basis of report of by rt of Demarcation of Boundary by local commissioner - Held, Local C ow ocal Commissioner failed to follow instructions issued by Financia ect ncial Commissioner on subject matter, nor gave proper and lawf er, lawful notices to parties - Further, he did not affix three pucca point ny oints, rather treated entire colony as one of pucca point - Therefore ce, fore, no merit in petition - Hence, petition dismissed.” 10. Learned counsel further ther relies upon of judgment of Himachal Prad Pradesh High Court in “Sushma D sh ma Devi & Another Vs. Ramesh Chand & Anot Another” Law Finder Doc ID # 7627 aj” 62710; “Kamal Dev Vs. Hans Raj” Law Finder Do r Doc ID # 14439. 11. 12. No other argument is made ade on behalf of the parties. I have heard learned couns ed ounsel for the parties and perused the case file in ile in great detail. 13. I find no merit in the subm he ubmissions made on behalf of the plaintiff. It wa t was the case of the plaintiff that t ed at the defendant had encroached on 6 feet lan land of the plaintiff. In support, on ort, the plaintiff had relied upon demarcation r on report (Ex.P1) submitted by th 3). y the Local Commissioner (PW3). The said repor eport had been objected to by the d at he defendant on the grounds that same had not not been prepared as per Rules as les, and even no intimation was given to th the defendant at the time aid e of demarcation. The said SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) objection/omi omission was admitted by the Lo Page 7 of 9 9 (cid:1) his Local Commissioner/PW3 in his cross-examina ination to the effect that as per ny per FCR, prior to conducting any demarcation on of land, 3 pukhta points are requ t is required to be fixed. However, it is admitted, tha that in the present case, he fix as fixed only 2 pukhta points as reflected in hi in his report. The Local Commissione in sioner has further admitted that in case any pukh pukhta point is missing then demar tly marcation has not been correctly conducted. PW . PW3 has further admitted that he om t he did not obtain any order from any Competen etent Authority for conducting the d yor the demarcation through Surveyor Machine; that that he had not prepared the repor ot eport at the spot; that he has not produced any any marginal notes prepared by h he by him at the spot. As such, the demarcation on report/the sole evidence relie as relied upon by the plaintiff was therefore, not not believable. 14. Moreover, it was not deni ion denied that the said demarcation report had bee been prepared in the absence of th ort of the defendant. Thus, the report could not be r be relied upon for the same reason tiff ason as well. Further, the plaintiff has also admi dmitted in his evidence as PW5 tha did that the Local Commissioner did not demarcate rcate any other plot except the plot lot plot of the plaintiff. Thus, the plot of the defen efendant was not demarcated; ect ; and therefore, the correct dimensions of s of the respective plots of the pla ot laintiff and defendant were not ascertained. T d. The above facts would necessar at ssarily lead to the inference that the report had had been prepared only to favour t ur the plaintiff. SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) 15. Furthermore, PW3 Raghbi Page 8 of 9 9 (cid:1) he ghbir Singh had deposed that the plot of the pla e plaintiff abutted a 33-feet wide r he de road and on both sides of the road, there w re was existing drainage. This fac he fact has been admitted by the plaintiff/PW5 W5 also, that his plot is situated a at ed adjacent to the road and that between his p is plot and the drainage, there was nd. was existing 8-9 feet vacant land. The plaintiff h iff has further admitted that he got he got his plot demarcated from the road which inc h includes drainage also. From the a he the above facts, it is clear that the demarcation on report was not as per the c en e correct position at site. Even Draftsman/PW /PW4 Karambir who had prepare as pared the site plan (Ex.P6) has admitted that that on the instructions of the plai ed plaintiff, he had only demarcated the plot of the f the plaintiff while preparing the sit did e site plan (Ex.P6), and that he did not demarcate rcate the plot of the defendant. He he . He has further admitted that he did not obtai btain copy of Aks-shijra prior to d ot to demarcation; that he did not measure the d he disputed wall. As such, even evi as evidence of PW4/Draftsman was discarded as, a as, as per his own evidence he had as had not prepared the site plan as per the situati tuation existing at the spot. Thus,
Decision
he , in view of the above facts, the suit of the plai plaintiff, was rightly dismissed by th by the learned Courts below. 16. Furthermore, it is admitt he mitted fact on record that the disputed wall wall had been constructed by Chot nd Chotu Ram in the year 1982 and that the defen efendant had not raised any cons ter onstruction upon the same after purchasing th g the same from Chotu Ram. Thi m This fact was also proven from photographs hs (Ex.D1 to Ex.D5). Thereafter cal after, the report of the Local SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1) Commissioner oner was got prepared by the plain Page 9 of 9 9 (cid:1) led laintiff in 2014, and suit was filed in the year 201 r 2016 i.e. after expiry of more than of than 34 years after construction of the wall in 19 n 1982. Whereas as per law, the pl of e plaintiff can seek possession of land within 12 n 12 years. It has also come on rec tu record that in 1982, when Chotu Ram had rais raised the construction of wall, no all, the plaintiff had raised no objection to th to the same. 17. Ld. Counsel for the plain or plaintiff is unable to dispute or controvert the t the above said facts and findings. ive ngs. Moreover, plaintiff can derive no benefit fro t from the relied-on judgement as t on as the same is distinguishable on law. facts and law. 18. 19. 07.04.2025 Sunena In view of the above, prese resent appeal is dismissed. Pending application(s) if an if any also stand(s) disposed of. (Nidhi Gupta) Judge Whether speaki Whether report eaking/reasoned: Yes/No Yes/No portable: SUNENA 2025.04.09 11:32 I attest to the accuracy and integrity of this document (cid:1)