A plaintiff proved ownership of property, and the court upheld findings on encroachment based on admissions and evidentiary assessments.

JUDGMENT :

H.P.SANDESH, J.

1. This matter is listed for admission. Heard the learned counsel for the appellants and also the learned counsel for the respondents.

2. This appeal filed is against the concurrent finding. The factual matrix of case of plaintiff before the Trial Court while seeking the relief of declaration and possession that the plaintiff is the owner of the suit ‘A’ schedule property and ‘B’ schedule property is the part and parcel of ‘A’ schedule property and the plaintiff specifically pleaded that defendants encroached the suit ‘B’ schedule property to the extent of 35 guntas of land and also contend that defendant interfering with peaceful possession and enjoyment of the suit schedule property. The defendants have appeared and filed written statement contending that suit is bad for non-joinder of necessary parties and also contend that suit is barred by limitation and also contend that the plaintiffs only based on the private survey, seeking for the possession and the same cannot be considered. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence before the Court and also taken note of the material available on record and Court Commissioner also appointed before the Court even though earlier there was a private survey and the same was challenged before the Deputy Commissioner and Deputy Commissioner set-aside the same.

3. The Trial Court having taken note of the pleadings as well as arguments canvassed by both the parties, taken note of admitted facts which are culled out from the pleadings. The plaintiff’s claim over the suit property on the basis of partition deed 15.12.1957 with regard to the partition, either of parties have no dispute and there is an admission also. The claim of the plaintiff that his father was allotted with an area measuring 6 acres 35 guntas in Sy.No.4. It is also further contention that portion allotted to their father is eastern most part of Sy.No.4 and to west of it, the share of defendant's father is situated, this assertion is also admitted by the defendants. In this regard, the suggestions that are posed to P.W.1 and the admissions given by D.W.1 during the course of cross-examination with regard to the location of the property is concerned, there is no dispute.

4. It is also not in dispute that father of the plaintiff had alienated 4 acres of land in Sy.No.4/P1 to one Mohammed Sab, later, it is finally vested with Komal Chand as per sale deed of the year 1986. The said portion was southern part of his holding and retained 2 acres 35 guntas on northern side. It is the specific case of the plaintiff that he is having only the possession of 2 acres and remaining areas with the defendant and he had encroached the same. The Trial Court having considered the report of the Court Commissioner, comes to the conclusion that property can be identifiable with regard to the 30 acres 35 guntas of land is concerned and also taken note of admission on the part of D.W.1 in the cross-examination in paragraph No.49 that total measurement of land is 30 acres 35 guntas and it was partitioned among the five brothers. In the partition, the father of the plaintiff was allotted 6 acres 35 guntas and the same is not disputed and other brothers have got 6 acres of land each. He also admitted the western, southern and northern boundaries of the said allotted property. The D.W.1 also admitted that eastern land holder of suit property had not been encroached. He also admitted that no survey was conducted after the partition and no such sub-division had taken place inconsonance with partition deed E