Raghbir and Others vs Rajender Kumar and Others

L.N. Mittal, J.—This is second appeal by Defendants No. 1, 5 and 6 having lost in both the courts below.

Suit was filed by Respondent No. 1 - Plaintiff Rajender Kumar against Appellants and proforma Respondents No. 2 to 6. The Plaintiff alleged that he and proforma Defendants No. 7 and 8 (proforma Respondents No. 2 and 3 herein) are owners in possession of the suit land measuring 5 kanals 4 marlas comprised of killa No. 23 and Defendants have encroached upon a part of the same by raising a wall about 20 days prior to the filing of the suit. Accordingly, permanent injunction and mandatory injunction was claimed.

Proforma Defendants No. 7 and 8 admitted claim of the Plaintiff.

Defendants No. 1 to 6 (Appellants and proforma Respondents No. 4 to 6) contested the suit and pleaded that they are owners in possession of 8 kanals land comprised of killa No. 18 and the suit land is part thereof.

Learned Additional Civil Judge (Senior Division), Narnaul vide judgment and decree dated 10.3.2009 decreed the Plaintiff''s suit. First appeal preferred by Defendants No. 1, 3 to 6 has been dismissed by learned Additional District Judge (Fast Track Court), Narnaul vide judgment and decree dated 30.11.2010. Feeling aggrieved, Defendants No. 1, 5 and 6 have filed the instant second appeal.

I have heard learned Counsel for the Appellants and perused the case file.

As per judgment of the trial court, the suit land was demarcated by Naresh Kumar, Naib Tehsildar, Ateli as Local Commissioner vide demarcation report Ex. P1 coupled with site plan Ex. P2 and memo of presence Ex. P3 and copy of notice Ex. P4. Defendants No. 3 to 6 have been found to have encroached upon the disputed part of the suit land. It is undisputed that Plaintiff and proforma Defendants No. 7 and 8 are owners in possession of 5 kanals 4 marlas of land of killa No. 23. Even contesting Defendants No. 1 to 6 did not claim any right, title or interest therein. They rather claimed to be owners of 8 kanals of land of killa No. 18. Consequently, dispute was regarding the demarcation of the suit land. The demarcation was carried out by Naresh Kumar, Local Commissioner and his report is in favour of the Plaintiff.

In rebuttal, the Defendants examined Om Parkash, retired Naib Tehsildar DW2 who proved demarcation report which is in favour of the contesting Defendants. However, said demarcation was obtained by the contesting Defendants at their own level without intervention of the trial court and without notice to the Plaintiff. Consequently, said demarcation report Ex. D1 cannot over-ride or prevail over demarcation report Ex. P1 obtained by the trial court.

Learned Counsel for the Appellants vehemently contended that demarcation by Naresh Kumar, Local Commissioner was carried out without notice to contesting Defendants. The contention cannot be accepted. Copy of presence sheet Ex. P3 as shown by learned Counsel for the Appellants depicts that it was signed by Defendants No. 1 to 4 showing their presence at the time of demarcation. Defendant No. 1 - Raghbir while appearing as DW4 vaguely stated that demarcation was not carried out in their presence. However, he did not even deny his signatures on presence sheet Ex. P3 nor he denied signatures of Defendants No. 2 to 4 on the said presence sheet. Consequently, it cannot be said that the demarcation by Naresh Kumar, Local Commissioner was carried out without notice to contesting Defendants or in their absence. On the contrary, the said demarcation was carried out in the presence of Defendants No. 1 to 4. Consequently, the said demarcation report Ex. P1 has been rightly relied on by courts below for decreeing the suit of the Plaintiff.

Counsel for the Appellants also contended that demarcation by Naresh Kumar, Local Commissioner was not carried in accordance with High Court Rules and Orders as entire revenue record was not produced at the time of said demarcation. The contention is completely devoid of merit because perusal of demarcation report Ex. P1 as shown by learned Counsel for the Appellants reveals that Patwari Halqa was present at the spot with all the relevant record.

For the reasons aforesaid, I find No. merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the Plaintiff is fully supported by the evidence on record. Said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal or based on misreading or misappreication of evidence so as to warrant interference in second appeal. No. question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is accordingly dismissed in limine.