RSA-5003-2017 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 232 RSA-5003-2017 (O&M) Date of decision: 10.02.2026 Pawan Kumar ...Appellant(s) Vs. Hukam Chand ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Robin Du琀琀, Advocate for the appellant. Mr. Manoj Sharma, Advocate and Ms. Anavi Parnami, Advocate for the respondent. ****** NIDHI GUPTA, J. Defendant is in Second Appeal against the concurrent judgments and decrees of the learned District Courts; whereby suit of the respondent/plain琀椀昀昀 for permanent and mandatory injunc琀椀on, was partly decreed by the learned Trial Court; and was decreed in toto by the learned First Appellate Court in the Civil Appeal 昀椀led by the plain琀椀昀昀. 2. Brief facts of the case are that the respondent/plain琀椀昀昀 had 昀椀led a suit seeking a decree of permanent injunc琀椀on restraining the defendant from interfering in the passage comprised in khasra No.96//11/1/2/3/4/2 (0-2) situated at village Bilaspur, District Yamuna Nagar marked with le琀琀ers AECD shown red in the rough site plan a琀琀ached with the plaint; And for Mandatory injunc琀椀on direc琀椀ng the defendant to remove the super structure which has been constructed illegally upon the encroached area measuring 1'-6" X 32' in the abovesaid passage, shown DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 2 - Red with le琀琀ers AEFG in rough site plan; and also constructed projec琀椀on shown with le琀琀ers and construc琀椀on thereupon. 3. It was the pleaded case of the plain琀椀昀昀 in the plaint that there is a passage towards southern side which was le昀琀 in a family se琀琀lement in the year 1985 for ingress and outgress of the plain琀椀昀昀. This passage is situated on the backside of the property of the defendant which he had purchased from Kailash Chand, brother of the plain琀椀昀昀. It was stated that defendant was given no right to use the passage which was a private passage of the plain琀椀昀昀 and his brother. It was further alleged that defendant had constructed shop and made encroachment over area measuring 1’-6” x 32’ out of the passage. Accordingly, present suit for permanent and mandatory injunc琀椀on was 昀椀led on 11.12.2007. 4. Upon appraisal of the pleadings and the evidence led by the par琀椀es, the learned Addi琀椀onal Civil Judge (Senior Division), Bilaspur had partly decreed the suit of the plain琀椀昀昀 as follows:- “16. As a sequel to my above 昀椀ndings, par琀椀cularly on issue no. 1, suit of the plain琀椀昀昀 is partly decreed to the e昀昀ect that as per report of Local Commissioner dated 06.06.2008 Ex. P4 and report dated 18.12.2007 defendant is liable to remove four temporary pillars of 4' height raised in the street in dispute. Defendant is directed to remove the said encroachment within two months from today. Decree sheet be prepared accordingly. File be consigned to record room a昀琀er due compliance.” DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 3 - 5. Against the above said judgment, respondent/plain琀椀昀昀 had preferred Civil Appeal, which was allowed by the learned Addi琀椀onal District Judge, Yamuna Nagar at Jagadhri; whereby the judgment and decree of the learned Trial Court was modi昀椀ed and suit of the plain琀椀昀昀 was decreed in toto vide judgment and decree dated 17.07.2017 as follows:- “23. As an upshot of the above discussion, the present appeal is hereby accepted with no order as to costs. Consequently, the suit of the plain琀椀昀昀-appellant is hereby decreed with costs in toto and thus, in addi琀椀on to the relief granted by the learned lower court, which has already been implemented as per the arguments raised by the learned counsel for the respondent/defendant, further decree for permanent Injunc琀椀on is hereby passed in favour of the plain琀椀昀昀-appellant restraining the defendant/respondent from Interfering into the use of the passage in ques琀椀on by the plain琀椀昀昀-appellant; further, a decree for mandatory injunc琀椀on is also passed in favour of the plain琀椀昀昀 direc琀椀ng him the defendant to remove the encroachment made by him over 32'X 1'-6" over the rasta/street in ques琀椀on by dint of demarca琀椀on report Ex. P4, within a period of two months from today.” 6. Hence, the present second appeal by the defendant. 7. At the very outset, it is submi琀琀ed by learned counsel for the appellant that in compliance of the decree of the learned Trial Court, appellant had duly removed the four temporary pillars of 4 feet height. It is submi琀琀ed that however, the learned First Appellate Court has decreed the suit of the plain琀椀昀昀 in toto; thereby direc琀椀ng the appellant to remove DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 4 - the alleged encroachment made by him over 32’ x 1’-6” on the basis of the report of the Kanungo Ex.P4. 8. Learned counsel for the appellant submits that the 昀椀rst Appellate Court has erred in decreeing the suit on the basis of Ex.P4, the report made by Kanungo as the same is contrary to the High Court Rules and Orders which is envisaged in Vol.I, Chapter 1 Part M, where the procedure in Hadd Shikni, which provides the instruc琀椀ons for the guidance of the Commissioner, the Financial Commissioner have issued the detailed Instruc琀椀ons for guidance of the revenue o昀케cer or Field Kanungo, appointed as a Local Commissioner in the Civil Suit. But the instruc琀椀ons issued by the Financial Commissioner, envisaged in the High Court Rules were not followed by the Filed Kanungo, while giving his report. Hence, report of Field Kanungo, Ex.P4 is not legal, hence is not binding upon the appellant. 9. Learned counsel for the appellant further submits that the appellant speci昀椀cally objected the report of the Field Kanungo and in his objec琀椀on speci昀椀cally men琀椀on that three points on di昀昀erent sides of the place in dispute as near to it were not explained in detail. Further, in the objec琀椀on, the appellant has speci昀椀cally men琀椀oned that the Kanungo should demark the demarca琀椀on from some pucca point a昀케xed by the Revenue Authori琀椀es, but in the present case, neither the pucca point a昀케xed by the Revenue Authori琀椀es was men琀椀oned by the Kanungo in his report, nor the instruc琀椀ons issued by the Financial Commissioner was followed. Hence, the report Ex.P4 is not binding upon the appellant. DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 5 - 10. Learned counsel further contends that learned Addi琀椀onal District Judge, Yamuna Nagar at Jagadhri has also failed to appreciate that projec琀椀on is in conformity with the Sale Deed Ex.D1, which was duly proved by the appellant. In the registered Sale Deed Ex.D1, it is speci昀椀cally men琀椀oned that appellant can use the land in ques琀椀on as per his own wishes; and it is further men琀椀oned that in the passage, appellant can raise lintel but not below the height of 12-1/2’; and can use projec琀椀on in the gali upto 2-1/2’. Moreover, it is undisputed fact on record that the said projec琀椀on has been in existence since July 1996 and was made by the vendor of the appellant i.e. brother of the plain琀椀昀昀. However, at no stage has the plain琀椀昀昀 ever raised objec琀椀on to the same. In fact, the plain琀椀昀昀 and his son was present when the construc琀椀on was made. However, all these admi琀琀ed facts have been ignored by the learned First Appellate Court. 11. It is accordingly prayed that the present Appeal be allowed; and the impugned judgment dated 17.07.2017 passed by learned Addi琀椀onal District Judge be set aside. 12. Per contra, learned counsel for the respondent/plain琀椀昀昀 vehemently opposes submissions of the appellant and that the appellant has admi琀琀edly raised projec琀椀on which extends 32’ X 1-6” over the passage; thereby obstruc琀椀ng the use of the plain琀椀昀昀 over the said passage. Therefore, it was the speci昀椀c prayer of the plain琀椀昀昀 in the civil suit was “Mandatory injunc琀椀on direc琀椀ng the defendant to remove the super structure which has been constructed illegally upon the encroached area measuring 1’-6” X 32’ in the above said passage, shown Red with le琀琀ers DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 6 - AEFG in rough site plan......”. Learned counsel points out that even the learned Trial Court had given categoric 昀椀nding that “Defendant has made encroachment to the extent of 32’ x 1/2’ raising 4 temporary pillars over the street in dispute regarding removal of which plain琀椀昀昀 is en琀椀tled.” It is submi琀琀ed that this 昀椀nding of fact has not been challenged by the appellant before the learned First Appellate Court as Civil Appeal was only preferred by the respondent/plain琀椀昀昀. 13. It is further submi琀琀ed that merely because the said illegal construc琀椀on has been raised by the defendant in the year 1996, would not debar the appellant from claiming its removal. It is submi琀琀ed that conten琀椀on of the appellant that no objec琀椀on was raised by the plain琀椀昀昀 at the 琀椀me of raising of the said illegal construc琀椀on, is incorrect. Moreover, learned First Appellate Court has correctly observed that “Merely because plain琀椀昀昀/appellant had not put the criminal law into mo琀椀on by moving any applica琀椀on before the police law into mo琀椀on by moving any applica琀椀on before the police or before any other authority regarding the misconduct on the part of the respondent/defendant thereby raising of construc琀椀on forcibly and illegally by making encroaching over the por琀椀on of the street in ques琀椀on, that ipso-fact cannot be a ground for the defendant/respondent to protect his illegal act.” It is submi琀琀ed that therefore, the present appeal deserves to be dismissed as it is undisputed fact on record that the appellant has raised construc琀椀on over the suit property which is in excess of what was permi琀琀ed to the appellant vide Sale Deed. DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 7 - 14. No other argument is raised on behalf of learned counsel for the par琀椀es. I have heard learned counsel and perused the case 昀椀le in great detail. I 昀椀nd merit in the submissions advanced on behalf of learned counsel for the appellant. 15. It is undisputed fact on record that as per the Sale Deed dated 11.06.1996 Ex.D1 (at page 95 of the LCR), appellant had been permi琀琀ed to “raise lintel which would not be below the height of 12-1/2’; and the same could extend into the passage only upto the depth of 2- 1/2’.” Learned Trial Court had given categoric 昀椀nding of fact that “Defendant was found in possession of land measuring 32’ x 1/2’ having made encroachment over the rasta.” Appellant has not 昀椀led any Civil Appeal and this 昀椀nding of fact has not been challenged by the appellant before the 昀椀rst Appellate Court. Therefore, it is the concurrent and undisputed 昀椀nding of fact on record that the appellant has raised construc琀椀on in excess of what was permi琀琀ed to him vide the Sale Deed Ex.D1 inasmuch as the appellant has raised projec琀椀on to the extent of depth of 32’ X 1’.6” in the passage. This fact is also established from a perusal of the site plan Ex.P7 (at page 173 of the LCR) which shows that appellant has made projec琀椀on of depth of 32’ x 1-6” depicted at points AEFG. The said site plan is reproduced herein below:- DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 8 - 16. Clearly, therefore, the appellant has encroached, by construc琀椀ng projec琀椀on in excess of the sale deed. 17. At this stage, learned counsel, on instruc琀椀ons from their respec琀椀ve par琀椀es, submit that the party shall be sa琀椀s昀椀ed if the appellant DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document RSA-5003-2017 (O&M) - 9 - demolishes the construc琀椀on which is in excess of the sale deed. Accordingly, the appellant upon instruc琀椀ons, undertakes that construc琀椀on of lintel raised by the appellant beyond the Sale Deed, shall be forthwith removed; and that the appellant shall ensure that the projec琀椀on extends only to the depth of 2-1/2’ inches into the passage; and will not be at a height lower than 12-1/2’. Appellant undertakes to do the above within eight weeks from today; failing which it shall be open to the respondent to seek recourse to appropriate remedy as per Law. 18. In view of the above, the present Regular Second Appeal is partly allowed to the above extent in view of the undertaking given by learned counsel for the appellant. Decree sheet be prepared accordingly. 19. Pending applica琀椀ons, if any, stand disposed of. 10.02.2026 (NIDHI GUPTA) Divyanshi JUDGE Whether speaking/reasoned: Yes/No Whether reportable: Yes/No DIVYANSHI 2026.02.12 10:53 I attest to the accuracy and integrity of this document