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The trial Court on the preponderance of the evidence though held that the plaintiff was owner of the property but declined injunction by relying upon "parat patwar". In appeal, the lower Appellate Court gave credence to the "parat sarkar" and noticing the fact that the property had been partitioned, granted injunction.

Mr. Balram Parashar for Mr. Jagmohan Ghuman, learned 3 of 5 counsel appearing for the appellant submitted that the judgment and decree of the lower Appellate Court is not sustainable as there was a discrepancy in the "parat sarkar". Identity of the property was in dispute de hors of the fact that partition of the property had been reflected. In such circumstance, the respondent-plaintiff could not obtain injunction. The Senior Manager, who was present at the spot at the time of inspection conducted by the local commissioner has not stepped into the witness box. The local commissioner found that the appellant was in possession of the area for which injunction was sought. No person can be permitted to take law in his hands to encroach upon the area belonging to the third party. The location of the property was identified by PW7.

I have heard learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submission of Mr. Parashar, for, concededly partition proceedings were effected long time back and the Mutation No.364 to that effect had already been sanctioned. For all intents and purposes, Killa No.27 measuring 16 marlas and its bifurcation into Killa No.27/1 and 27/2 for 4 of 5 8 marlas each is not in dispute. Defendant has been able to prove construction on Killa No.27/1. No contrary evidence in this regard has been placed. Report of the local commissioner is based upon the parat patwar and parat sarkar. It was objected to but the objections remained undecided. Even request for appointment of second local commissioner was not acceded to. The defendant has not been able to justify the possession of Killa No.27/1, which was not owned by him. The demarcation report does not reveal the aforementioned fact. A person who is not owner cannot be permitted to encroach and implore to seek partition instead of injunction. The status of the parties, thus, would not be of co-sharer. The authorities granted licence, after verifying the aks sajra and other relevant documents. If at all, there was a dispute with regard to identity of the property, the defendant would not have raised the construction or would have got the demarcation conducted before doing the same.