Punjab-Haryana High Court
Smt. Harbans Kaur & Others vs Gurdial Singh on 17 December, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
RSA No.3393 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3393 of 2008
Date of Decision : December 17, 2012
Smt. Harbans Kaur & others ...... Appellants
Versus
Gurdial Singh ...... Respondent
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CORAM : HON'BLE MR. JUSTICE L.N. MITTAL
Present : Mr. Jai Bhagwan, Advocate
for the appellants.
Mr. Vijay Sharma, Advocate
for the respondent.
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L.N. MITTAL, J (ORAL)
This is second appeal by legal representatives of plaintiff Sewak Ang Singh (since deceased) having failed in both the courts below.
Plaintiff filed suit for possession of suit land measuring 300 square yards out of khasra Nos.50/2 and 52 on southern side of plot No.18A. Plaintiff alleged that he had sold plot No.18A measuring 90' x 60'/72' total area 660 square yards to defendant's mother Hamir Kaur vide sale deed dated 27.05.1958 registered on 28.05.1958. The plaintiff remained in possession of the remaining suit land lying towards south of the said plot till March 1990. Thereafter, the defendant encroached upon the suit land in the absence of the plaintiff. Accordingly, plaintiff sought possession of the suit land.
Defendant/respondent Gurdial Singh broadly denied the plaint averments. The defendant alleged that his mother Hamir Kaur purchased RSA No.3393 of 2008 2 720 square yards plot from the plaintiff vide aforesaid sale deed. It was also pleaded that defendant is in possession of his ancestral house. Averments of the plaintiff were denied. In the alternative, claim by adverse possession was also set up.
Both the courts below have dismissed the suit of the plaintiff, who has, therefore, filed this second appeal.
I have heard counsel for the parties and perused the case file. Counsel for the appellants contended that as per demarcation carried out at the spot by the Local Commissioner appointed pursuant to order of this Court, the defendant has been found to be in possession of excess area of land belonging to the plaintiff.
I have carefully considered the aforesaid contention, but the same cannot be accepted being completely misconceived and meritless. This Court did not appoint any Local Commissioner for demarcation nor gave any direction for appointment of Local Commissioner. A perusal of trial court file reveals that vide order dated 14.12.2000, C.R. No.5563 of 2000, filed by plaintiff, was disposed of. The said order is reproduced hereunder :-
"Disposed of with the observations that let petitioner may file a proper application before the Tehsildar with a request to demarcate the area. The said application shall be disposed of on merits as per law.
Dasti."
Thus, this Court neither appointed any Local Commissioner nor gave any direction to appoint Local Commissioner. Only liberty was given to the plaintiff to move appropriate application to Tehsildar for demarcation of the area. It appears that pursuant thereto, plaintiff moved RSA No.3393 of 2008 3 application to Tehsildar for demarcation and thereupon one Pawan Kumar, Field Kanungo-DW2 went for demarcation of the suit land, but he made report that demarcation could not been done because the area is inhabited and no pakka point was available for making demarcation. It appears that plaintiff has obtained some other demarcation report from a retired Kanungo which cannot, therefore, be relied on.
Even otherwise, perusal of the plaint reveals that the plaintiff sought possession of the suit land lying towards south of plot No.18A which he had sold to defendant's mother vide sale deed Ex.P-3. Perusal of the said sale deed reveals that towards south of the plot No.18A, there was land of one Charanjit Singh Mandher and there was no land of the plaintiff towards south of plot No.18A. In this view of the matter also, the plaintiff cannot be said to be owner of the suit land.
For the reasons aforesaid, I find that concurrent finding recorded by both the courts below to non-suit the plaintiff is fully justified by the evidence on record. The plaintiff has miserably failed to depict that he is owner of the suit land. Finding recorded by the courts below in this regard is not shown to be perverse or illegal or based on misreading or misappreciation of evidence on record. There is, therefore, no ground to interfere with the said finding. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed being meritless.
( L.N. MITTAL ) JUDGE 17.12.2012 Anand