DILBIR SINGH Vs. BRIJ MOHAN SINGH

JUDGEMENT

(1.) SUIT filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 30.04.2011. Appeal preferred against the said decree failed and was accordingly dismissed on 26.03.2013. That is how, the defendant is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) IN short, the case set out by the plaintiff was that he was the owner of land measuring 1 Kanal comprised in khasra No. 194 -195/2/1 (0 -12), 194 -195/2/2/1 (8 -0) and he was the owner/co -sharer in the remaining land as so recorded in the record of rights. It was stated that, plaintiff was owner in possession of the house as depicted in the site plan in green colour and marked by letters ABCEFG. It was averred that the defendant had no right, title or interest in the suit property. It was maintained that the property of the defendant adjoined the suit property on its northern side and defendant had forcibly and illegally encroached upon the suit property i.e. site ABCD shown in red colour in the site plan. The defendant had even raised a boundary wall at point CD, that was about 4 to 6 feet in height and had also raised a bathroom and erected domestic water pipe towards the house of the plaintiff. Portion ABCD was encroached by the defendant. Hence, the suit.

(3.) ON an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that the plaintiff was the owner in possession of land measuring 1 kanal 0 marla comprised in khasra No. 194 -195/2/1 (0 -12) and 194 -195/2/2/1 (0 -8) and was also a co -sharer in the remaining land. Further, he had constructed his house marked as ABCDEFG as depicted in the site plan Ex. P1 and the defendant had encroached upon the property marked as ABCD shown in red colour in the site plan. Halqa Kanungo, who was appointed as Local Commissioner by the Court, visited the spot and vide demarcation report Ex. P6, clarified that the defendant had encroached upon a portion of the property of the plaintiff, shown as ABC in red colour in the site -plan prepared by him. Though, defendant filed objections to the report of the Commissioner, however, he did not summon the Local Commissioner for cross -examination. So much so, application made by the plaintiff to summon the Kanungo/Local Commissioner was opposed by the defendant. Still further, after the evidence of the parties was concluded, with their consent, Naib Tehsildar, Anandpur Sahib, was appointed as Local Commissioner, again to inspect the spot. Vide report dated 5th of March, 2011, even the second commission reported that the defendant had encroached upon a part of khasra No. 194 -195/2/1/and 194/2/2/1. Once again, the defendant filed objections to the said report but the same were rejected. As the demarcation was carried out in the presence of both the parties and their respective counsel and the memo of presence was duly thumb marked by the defendant. It was observed that Naib Tehsildar, Anandpur Sahib was appointed at the request of the defendant. It was, thus, concluded that the defendant had encroached upon an area measuring 801 square feet i.e. 66' -6" on eastern side, 66' -6" on western side, 10' on southern side and 14' northern side out of khasra No. 194 -195/2/1 and 194 -195/2/2/1. Accordingly, the suit was decreed vide judgment and decree dated 30.04.2011.