Dilbir Singh vs Brij Mohan Singh

Arun Palli, J.—Suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 30.04.2011. Appeal preferred against the said decree failed and was accordingly dismissed on 26.03.2013. That is how, the defendant is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

In short, the case set out by the plaintiff was that he was the owner of land measuring 1 Kanal comprised in khasra No. 194-195/2/1 (0-12), 194-195/2/2/1 (8-0) and he was the owner/co-sharer in the remaining land as so recorded in the record of rights. It was stated that, plaintiff was owner in possession of the house as depicted in the site plan in green colour and marked by letters ABCEFG. It was averred that the defendant had no right, title or interest in the suit property. It was maintained that the property of the defendant adjoined the suit property on its northern side and defendant had forcibly and illegally encroached upon the suit property i.e. site ABCD shown in red colour in the site plan. The defendant had even raised a boundary wall at point CD, that was about 4 to 6 feet in height and had also raised a bathroom and erected domestic water pipe towards the house of the plaintiff. Portion ABCD was encroached by the defendant. Hence, the suit.

Defendant, pleaded inter alia, that site plan produced by the plaintiff was false and not correctly prepared. Ownership/title of the plaintiff qua the site marked with letters ADCEFG was denied. Site in dispute i.e. ABCD shown in blue lines in the site plan was purported to be owned by the defendant, in which he had already raised his residential house. The construction in the site in dispute i.e. ABCD was in existence since long and to the knowledge of the plaintiff and public at large. Alternatively, it was maintained that, in case, the defendant is found to be in possession over any part of the suit land, then, also, he had perfected his title by way of adverse possession.

On an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that the plaintiff was the owner in possession of land measuring 1 kanal 0 marla comprised in khasra No. 194-195/2/1 (0-12) and 194-195/2/2/1 (0-8) and was also a co-sharer in the remaining land. Further, he had constructed his house marked as ABCDEFG as depicted in the site plan Ex. P1 and the defendant had encroached upon the property marked as ABCD shown in red colour in the site plan. Halqa Kanungo, who was appointed as Local Commissioner by the Court, visited the spot and vide demarcation report Ex. P6, clarified that the defendant had encroached upon a portion of the property of the plaintiff, shown as ABC in red colour in the site-plan prepared by him. Though, defendant filed objections to the report of the Commissioner, however, he did not summon the Local Commissioner for cross-examination. So much so, application made by the plaintiff to summon the Kanungo/Local Commissioner was opposed by the defendant. Still further, after the evidence of the parties was concluded, with their consent, Naib Tehsildar, Anandpur Sahib, was appointed as Local Commissioner, again to inspect the spot. Vide report dated 5th of March, 2011, even the second commission reported that the defendant had encroached upon a part of khasra No. 194-195/2/1/and 194/2/2/1. Once again, the defendant filed objections to the said report but the same were rejected. As the demarcation was carried out in the presence of both the parties and their respective counsel and the memo of presence was duly thumb marked by the defendant. It was observed that Naib Tehsildar, Anandpur Sahib was appointed at the request of the defendant. It was, thus, concluded that the defendant had encroached upon an area measuring 801 square feet i.e. 66''-6" on eastern side, 66''-6" on western side, 10'' on southern side and 14'' northern side out of khasra No. 194-195/2/1 and 194-195/2/2/1. Accordingly, the suit was decreed vide judgment and decree dated 30.04.2011.

Being dissatisfied with the decree, defendant preferred an appeal. Learned First Appellate Court reviewed the matter in issue, evidence on record in its entirety and on an analysis thereof found itself in concurrence with the view drawn by the trial Court and the findings recorded in support thereof. Learned First Appellate Court referred to both the reports dated 29.05.2004 (Ex. P6) and 07.03.2011 (Ex. PX), which reads as thus:

After conducting the entire demarcation, I have reached at a conclusion that the land shown in annexed site plan at points AB measuring 11 feet and shown at points BC measuring 671/2 feet and shown at point AC measuring 70 feet total 371 square feet belonging to Brij Mohan has been encroached upon by the second party namely Dilgir Singh @ Dalbir Singh by raising a boundary wall. All the parties were duly satisfied at the spot and none raised any objection. The demarcation report is being submitted. The site plan is annexed herewith.

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As per directions of the Hon''ble Court, I got the demarcation conducted from Kanungo and Patwari under my supervision. The demarcation was started from village Majara from its permanent boundary, which was accepted to be correct by the owners of the land and by the respectables present at the spot. As per the record, a passage of 2 karam is thereon the boundary of village Majara on the eastern side of the road. From the said passage 30 karams falling in khasra No. 8//26 near the road were measured and another passage was established which coincided correctly at the spot. Thereafter, 40 karam from khasra No. 8//19 and 48 karam from khasra No. 8//11, total 122 karam were measured upto the boundary of village Sadhewal. In this matter, the land on the western side of the road measuring 10+42+62+4, total 18 karam was measured upto the boundary of village Sadhewal and the said measurement coincided correctly with the boundary of village Sadhewal. The aforesaid disputed land comprised in khasra No. 194-195/2 was measured along the road as 10+25=35 karam and the land comprised in Khasra No. 194-195/1 was measured 29 karam along the road and all the four corners of khasra No. 194-195 were established. The second party Dalbir Singh has purchased land measuring 19 marla out of khasra No. 194-195/1 vide two registered sale deeds and which was measured at the spot and the land purchased by Dalbir Singh as per the sale deeds was completely in his possession. However, he is unauthorised possession of land shown in site plan in yellow colour and marked as ABCD measuring 66''-6" on eastern side, 66''-6" on western side, 10'' on southern side and 15'' on northern side by constructing a boundary wall, latrine, bathroom etc. In other words, he has not kept himself in correct possession of the land purchased by him. Its area measures upto 801 square feet (4 marla). The report is being submitted in the Court.

On an analysis of the report Ex. PX and the accompanied site-plan Ex. PY, it was concluded that the encroached portion was calculated as 801 square feet (4 Marlas). On a conjoint reading of the site plan Ex. PY and Aks Shajra Ex. P2, it was evident that there indeed was an encroachment on the part of the defendant. Plea of the defendant that no pacca points were established by the Local Commissioner, was repelled as the learned Court was of the view that the Local Commissioner had conducted the demarcation by taking the boundary wall of the village as pacca point, which was accepted to be correct by the respectables of the village and not objected to by anybody at the spot. Objections preferred by the defendant against the report of the Local Commissioner were dealt with separately by the trial Court and were dismissed. That being so, learned First Appellate Court dismissed the appeal.

I have heard the learned counsel for the appellant at length and examined the judgments rendered by both the Courts below. Learned counsel for the appellant could not point out or show as to how the findings recorded by both the Courts below viz-a-viz the encroachment over the disputed area, at the instance of the defendant, was perverse or contrary to the position on record.

In the wake of the position as set out above and the conclusions that have concurrently been recorded by both the Courts below, there hardly exists any ground, least plausible in law, to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration in the present appeal. The appeal being devoid of merit is accordingly dismissed.