GURDIAL SINGH Vs. JIWAN SINGH

JUDGEMENT

(1.) This is defendants Second Appeal for setting aside the judgments and decree of the Courts below. The plaintiff filed the suit alleging to have encroached upon certain portion of khasra No. 13 owned by him. The disputed site has been shown in the plan Exhibit P-2 attached with the plaint. The suit was resisted by the defendants on the plea that the defendants have not encroached upon any portion of the land in dispute as alleged.

(2.) The trial Court appointed Local Commissioner Mohinder Singh, Office Kanungo, who submitted his report. Thus, on the appreciation of evidence on the record, it was held that the plaintiff was the owner of the land in dispute. Consequently the plaintiff's suit was decreed on December 3, 1976. In appeal, learned Additional District Judge, Ludhiana affirmed the said finding of the trial Court and maintained the decree passed by the trial Court in favour of the plaintiff.

(3.) At the time of motion hearing, it was contended that objection to the report of the Commissioner had been filed. After going through the judgment, I find that before the lower appellate Court, an application was submitted that second Local Commissioner may be appointed. That application for appointing second Local Commissioner was not granted. Learned counsel for the defendant before the lower appellate Court contended that the said application should be deemed to be objections filed. This argument was repelled by the learned Additional District Judge on the ground that neither there is mention in the heading of the application nor there is anything in the prayer clause to this effect. In any case, this is not a ground to set aside concurrent findings of the Courts below in second appeal. Consequently, the appeal fails and is dismissed. The plaintiff also filed cross-objections for claiming costs in appeal in the lower appellate Court. I find that the plaintiff is entitled to the costs of both the courts below and therefore, cross-objections are allowed.