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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  9332 OF 2018 (Arising out of SLP(C)No. 34460 of 2016)

KALYAN SINGH                                       Appellant(s)

                               VERSUS

RAVINDER KAUR (D) THR. LRS.                        Respondent(s)

O R D E R

R. BANUMATHI, J.

(1) Leave granted.

(2) This appeal arises out of judgment dated 13th May, 2016

passed by the High Court of Punjab and Haryana at Chandigarh in

Regular Second Appeal No.859 of 1988 in which the High Court

has reversed the judgment of the First Appellate Court and

restoring the judgment of the trial court thereby affirming the

decree in favour of respondents/plaintiff for declaration and

possession.

(3) The respondents-plaintiff has purchased the suit property

admeasuring an extent of 852-1/3 sq. yards by a sale deed dated

6th September, 1978.  Alleging that the appellant-defendant has

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taken  forcible  possession  of  the  suit  property,  the

respondents-plaintiff has filed the suit for declaration and

possession.  The trial court decreed the suit in favour of the

respondents-plaintiff holding that the vendor of the plaintiff

had appeared and testified about sale deed dated 6th September,

1978 that physical possession of the property covered under the

sale deed was delivered to them.

(4) Being aggrieved, the appellant herein filed appeal before

the Appellate Court which was allowed.  After referring to the

Report of the Local Commissioner that the respondents-plaintiff

is in actual possession of 955 sq. yards as against 852-1/3 sq.

yards purchased by them and that the consolidation records are

missing  and  also  that  there  was  no  pucca  burji,  the  First

Appellate  Court  reversed  the  judgment  of  the  trial  court

thereby dismissing the respondents-plaintiff’s suit.  In the

second appeal, the High Court has reversed the judgment of the

First Appellate Court and held that the Local Commissioner has

not verified the available map with the Patwari and that based

on the Local Commissioner’s Report, the First Appellate Court

ought not to have reversed the judgment and decree of the trial

court.

(5) We  have  heard  Mr.  Rakesh  Kumar  Khanna,  learned  senior

counsel appearing for the appellant and Mr. Sangram S. Saron,

learned counsel appearing for the respondents.

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(6) As seen from the sale deed filed (Annexure CA-1 of the

paper  book),  the  respondents-plaintiff  has  purchased  the

property, an extent of 852-1/3 sq. yards in Khasra No.316/1.

As per the evidence of the respondents-plaintiff-vendor, the

respondents-plaintiff  was  put  in  physical  possession  on  the

land covered under the sale deed viz. an extent of 852-1/3 sq.

yards.  As pointed out by the First Appellate Court that after

the  local  inspection  of  the  suit  property  the  Local

Commissioner  in  his  Report,  Ex.D1/K,  has  observed  that  the

respondents-plaintiff is in possession of 955 sq. yards of the

land  though  she  (Ravinder  Kaur)  actually  purchased  852  sq.

yards  only  and  the  said  Report  was  not  challenged  by  the

respondents-plaintiff.  As pointed out by the First Appellate

Court when the Local Commissioner’s report was not challenged

by the plaintiff, the oral testimony of Sajjan Singh (PW-2),

vendor of the plaintiff, and her husband, Ripudaman Singh (PW-

1), does not substantiate  the claim of the plaintiff that the

appellants have encroached upon the suit property.  The claim

of the respondents-plaintiff that the appellant has encroached

upon the property and took forcible possession under the garb

of  temporary  injunction  in  the  earlier  suit  remains

unsubstantiated.  Further there are no clear averments as to

the alleged date of encroachment and the steps then taken by

the respondents-plaintiff.  In our considered view the High

Court has not considered the findings recorded by the First

Appellate Court which is based upon the appreciation of the

evidence and Report of the Local Commissioner.

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(7) That apart in the second appeal, no question of law much

less  substantial  question  of  law  arose  and  the  substantial

question of law framed by the High Court is not a substantial

question  of  law  but  purely  a  question  of  fact  in  dispute

between the parties.  The impugned order of the High Court in

Regular Second Appeal No.859 of 1988 is not sustainable and is

accordingly set aside.

(8) In the result, the appeal is allowed, the judgment of the

First Appellate court is restored and resultantly the suit of

the respondents-plaintiff is dismissed.

..........................J.                 (R. BANUMATHI)

..........................J.         (INDIRA BANERJEE)

NEW DELHI, SEPTEMBER 11, 2018.