Single judge dismissed a second appeal against the reversal of a suit for mandatory injunction seeking vacant possession of land; held suit failed due to absence of demarcation report and opportunity for cross-examination.
Second appeal dismissed; judgment and decree of lower appellate court affirmed.
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RSA No.1825 of 2016 (O&M)
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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1825 of 2016 (O&M) Date of Decision.20.12.2018
Balbir Singh and another
....Appellants
Vs
Lakhbir Singh and another ...Respondents
CORAM:HON'BLE MR. JUSTICE AMIT RAWAL
Present: Mr. Baldev Singh Badhran, Advocate for the appellants.
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AMIT RAWAL J. (ORAL)
The appellants-plaintiffs have not been successful in defending the appeal filed at the instance of the defendants against the judgment and decree dated 07.09.2012 whereby the trial Court had decreed the suit but in appeal, lower Appellate Court reversed the same.
The appellants-plaintiffs sought mandatory injunction against the defendants to hand over the vacant possession of land marked ABCD by removing the construction marked ABFE allegedly in encroachment and illegal possession of the defendants.
Defendants opposed the suit denying the averments made in the plaint and alleged that construction was raised in their own plot.
Plaintiffs brought on record following documnary
evidence:-
“Ex.P1 Site plan of the suit land. Ex.P2 Copy of jamabandi for the year 2005-06. Ex.P3 Copy of khasra girdawari from year 2003 to
PANKAJ KUMAR 2019.01.03 12:05 I attest to the accuracy and integrity of this document
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RSA No.1825 of 2016 (O&M)
2008.
| Ex.P4 | Copy of jamabandi for the year 1995-96. |
|---|---|
| Ex.P5 | Copy of khasra girdawari from year 1994 and 1995. |
| Ex.P6 | Application by plaintiff nO.1 to SHO P.S. Pinjore. |
| Ex.P7 | Application under RTI Act dated 10.12.2010 regarding electricity connection. |
| Ex.P8 | Meter No.4603 in the name of Raj Rani dated 17.12.2008. |
| Ex.P9 | Information about water connection. |
| Mark-P/1 | Application under RTI Act dated 10.12.2010 regarding water connection. |
Mark-P/2 to P/9 Receipts of house tax.”
Mr. Badhran, learned counsel appearing on behalf of the appellant submitted that the lower Appellate Court has committed illegality and perversity in dismissing the suit without noticing the fact that evidence brought on record irresistibly proved on record the encroachment and illegal possession. The local commissioner report could not have been relied upon, as no opportunity was given to cross-examine.
I have heard learned counsel for the appellants, appraised the paper book and of the view that there is no force and merit in the submission, for, in order to discharge onus in tandem of the pleadings, the best possible evidence i.e. demarcation report has been withheld. In the absence of same, suit of such nature cannot succeed. The appellants-plaintiffs did not move an appropriate application for cross-examination of the local commissioner, in view of the provisions of Order 26 Rule 10(2) CPC. In the absence of the same,
PANKAJ KUMAR 2019.01.03 12:05 I attest to the accuracy and integrity of this document
RSA No.1825 of 2016 (O&M)
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report of the local commissioner is per se admissible.
In this view of the matter, the lower Appellate Court, in my view, being the last court of fact and law has correctly set aside the judgment and decree of the trial court after appreciation of the evidence brought on record. No substantial question of law arises for determination by this Court, much less, no ground for interference is made out. Resultantly, the second appeal is dismissed.
(AMIT RAWAL) JUDGE December 20, 2018 Pankaj* Whether Reasoned/Speaking Yes Whether Reportable No
PANKAJ KUMAR 2019.01.03 12:05 I attest to the accuracy and integrity of this document
Balbir Singh and another
Lakhbir Singh and another
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
