Hawa Singh & ORS v. Satbir Singh
{1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH Date of decision:16.11.2018 Hawa Singh and others ... Appellants Vs.
Satbir Singh ... Respondent
CORAM:
HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. B.R.Gupta, Advocate for the appellants.
AMIT RAWAL J. (Oral) C.M.No.17185-C of 2018 This is an application filed under Section 151 of Code of Civil Procedure for preponement of the hearing of Regular Second Appeal pending for preliminary hearing from 15.01.2019 to today in view of the urgency expressed, for, judgment and decree under challenge is being executed, wherein, warrant of possession has been issued for 22.11.2018. The application is accompanied by an affidavit. For the reasons stated in the application, the same is allowed and hearing of appeal is preponed. The appeal is taken on board for hearing today itself.
The appellant-defendants have not been successful in defending the suit for possession and injunction allegedly in un-authorised possession.
{2} The suit aforementioned was opposed on the premise that defendants were allotted plot no.134, and plaintiff plot no.140. There was no such encroachment. The defendants raised the construction on the plot owned by him.
In order to establish the unauthorised possession, the plaintif examined himself as PW1 and PW2-Sunil Kumar Bhatanagar, draftsman and also brought on record other documentary evidence. On the other hand, defendants examined five witnesses and placed on record the various documentary evidence and opposed the suit being barred by law of limitation.
On preponderance of the evidence, the trial Court decreed the suit and appeal taken before the Lower Appellate Court was also dismissed. Mr. B.R.Gupta, learned counsel appearing on behalf of the appellant-defendants in support of memorandum of appeal has raised the following submissions:- i) The Local Commissioner's report is not per se admissible and the same cannot be taken into consideration in the absence of testimony. ii) The objections to the aforesaid report had not been considered, for, it was not as per the actual situation at the spot. Iii) The ownership of both the plots was not in dispute but the plaintif failed to discharge the onus qua alleged encroachment. iv) Additional issues were framed on 04.06.2012 but no opportunity had been given to the defendants, thus, prevented to lead
{3} evidence.
v) The defendants had been in possession of the property for more than 12 years, therefore, the suit was barred by law of limitation. I am afraid the aforementioned arguments are not sustainable in the eyes of law, for, in view of the provisions of sub-rule (2) of Rule 10 Order 26 of Code of Civil Procedure, report of the Local Commissioner is per se admissible. As per the aforementioned provisions, it was obligatory upon the defendants to seek cross-examination of the witnesses. Filing of the objection is not a matter of fact.
The aforementioned view of mine is derived from the ratio decidendi culled by the Division Bench of this Court in Balbair Dewan Cold Storage and General Mills vs. Naveen Chander 1989 PLJ 247. The defendants have not been able to controvert the report of the Local Commissioner through independent evidence. If at all, the report was not in accordance with the situation at spot, they could have taken the assistance of the revenue expert. A plea of limitation amounts to have acquired the title by way of adverse possession, though the ingredients of adverse possession neither pleaded nor proved.
Bet that as it may, a person who seeks equity, must do equity. No contrary evidence has been led to establish the ownership on the alleged encroachment.
As an upshot of my findings, I do not find any illegality and perversity in the judgments and decrees under challenge which are based
{4} upon the appreciation of oral and documentary evidence, much less no substantial question of law arises for adjudication of the present appeal. Resultantly, the appeal is dismissed.
(AMIT RAWAL) JUDGE November 16, 2018 savita Whether Speaking/Reasoned Yes/No Whether Reportable Yes/No