Back
2018 Supreme(P&H) 995
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMIT RAWAL, J.
Balwinder Singh and another – Appellants
Vs.
Gurdarshan Singh and another – Respondents
RSA No.5013 of 2012 (O&M)
Decided On : 19-02-2018
For the Appellants :Mr. Rajan Bansal, Advocate
For the Respondents:Mr. Avtar Singh Bhatti, Advocate
IMPORTANT POINT
Local Commissioner – Demarcation Report – Not taken as per prescribed procedures-Such a report was just an eye wash to conduct the demarcation in compliance of the order of the court.Local Commissioner – Demarcation Report – Not taken as per prescribed procedures-Such a report was just an eye wash to conduct the demarcation in compliance of the order of the court.
Headnote:(A) Civil Procedure Code, 1908, O.26 R.9 – Local Commissioner – Demarcation Report – The said report is to be ordinarily accepted by the Court appointing the Local Commissioner unless any inherent defect could be pointed out therein – With the permission of the Court, any of the parties can examine commissioner personally in the open court pertaining to report and its investigation. (Para 15)
(B) Civil Procedure Code, 1908, O.26 R.9 – Local Commissioner – Demarcation Report – Measurement were not taken by taking the permanent point of one stone to other stone for the purpose of determination of encroachment – Held; It was just an eye wash to conduct the demarcation in compliance of the order of the court.
(C) Civil Procedure Code, 1908, O.26 R.9 – Local Commissioner – Demarcation Report – Report not to be ordinarily accepted where it was seriously objected to.
(D) Specific Relief Act, 1963, S.34 – Suit against encroachment – Demarcation Report – Report of local commissioner was objected as it had inherent defects – Objections were not answered – Even though nothing prevented the plaintiffs to summon the Field Kanungo for proving the contents of the demarcation report in order to belie the objections and plaintiff failed to prove an encroachment of land in the hands of defendants.
AMIT RAWAL, J.
1. This regular second appeal is being taken up owing to the order of the Hon’ble Supreme Court dated 04.09.2017 whereby while setting aside the judgment passed by this Court remitted the matter back for fresh consideration.
2. Before adverting to the rival contentions of the parties, it would be apt to give factual matrix of the matter. The appellants-plaintiffs instituted the suit for possession against the defendants on the premise that they are owners in possession of the land comprised in Khewat No.767, 702, 550/1206, 111, 876, Khasra No.95//15/3/4-0, 16/8-0, 25/1/4-0, 25/2/4-0, 94//21/8-0, 22/1/5-16, 95//1-8 as per jamabandi for the year 1995-96. It was alleged that on the southern side of the land of the plaintiffs, land owned by defendant No.1 comprised in khasra No.110//5, 111/1 and land owned by defendant No.2 comprised in khasra No.111/2 situated at village Sanghera. On 30.11.1999, defendants illegally and forcibly encroached upon the property of the plaintiffs to the extent of 1 kanal 7 marlas and merged with the property owned by them. The plaintiffs moved an application to the revenue authority for demarcation of the land. On 4.11.1999, demarcation was conducted by the revenue officials. While conducting the aforementioned demarcation, a site plan was also prepared and it was found that the defendants were in illegal possession of 1 kanal 7 marlas of the land. The defendants did not accede to the request of the plaintiffs for vacation of the premises and necessitated them to institute the suit.
3. Respondents-defendants contested the suit by taking customary pleas qua maintainability of the suit but on merits stated that on southern side of the land of the defendants, there existed land of the plaintiff. Defendant No.1 did not take any illegal possession of the land measuring 1 kanal 7 marlas. The Kanungo and Patwari, who were appointed by the Assistant Collector Grade-II, Barnala for demarcation of the land, on 23.11.1999 i.e. subsequent to the demarcation report dated 4.11.1999 in the presence of Balwinder Singh and other respectable of the village, found that no land was encroached upon by the defendants. Since the plaintiffs were not satisfied, another application was moved to the Assistant Collector, 1st Grade, Barnala who appointed field Kanungo and Patwari. The land was again demarcated on 7.12.1999 and it was found that there was no encroachment. Since the parties were at variance, the trial Court framed the following issues:-
“1. Whether the plaintiffs are owners of land as mentioned in para No.1 of the plaint? OPP
2. Whether the defendants on 30.11.99 came into unlawful possession of 1 kanal 7 marlas of land belonging to the plaintiffs? OPP
3. Whether demarcation report dated 30.11.99 is not correct? OPD
4. Whether the plaintiffs are in actual possession of the suit land?
5. Relief.
4. In support of their claims, the plaintiffs examined following witnesses:-
“PW-1 - Prem Parkash
PW-2 - Hakam Singh
PW-3 _ Balwinder Singh-plaintiff.
4. The defendants examined DW-1 Bachan Singh, field Kanungo, Dhanuala, DW-2 Maghar Singh, DW-3 Malkit Singh and thereafter, defendant No.1 as DW4.
5. In the earlier round of litigation, the suit filed by the plaintiffs was dismissed by the trial Court vide judgment and decree dated 19.07.2004. But in appeal, the lower Appellate Court vide judgment and decree dated 11.11.2006 remanded the matter back to the trial Court while setting aside judgment and decree by observing that the trial Court should have appointed the responsible revenue officials, who could have visited the site as per the provisions of law and given report with regard to the alleged encroachment. In this backdrop of the matter, the trial Court proceeded to decide the matter, afresh, whereby during the pendency of the suit, fresh report dated 13.06.2007 prepared by Vijay Kumar, Field Kanungo was brought on record. The trial Court on the basis of the preponderance of the evidence dismissed the suit. T
