IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 173 of 2000. Judgment reserved on : 9.9.2010 Date of decision : 13.9.2010. Darshan Lal …Appellant. Versus Dharam Chand ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. Vipin Potyaan, Advocate vice Mr. Subhash Sharma, Advocate. For the Respondent : Mr. Dushyant Dadwal, Advocate. Kuldip Singh, Judge The plaintiff has come in appeal against judgment, decree dated 25.11.1998 passed by the learned District Judge, Solan in Civil Appeal No. 17-S/13 of 1996 whereby the learned District Judge after accepting the appeal against judgment, decree dated 30.4.1996 of learned Sub Judge 1st Class, Solan in Case No. 212/1 of 90/1996 has dismissed the suit. 2. The facts, in brief, are that appellant had filed a suit for permanent prohibitory and mandatory injunction claiming himself owner in possession of the land comprised in Khasra No. 140/97/1/1 measuring 2 biswas situated at mauza Dhar Ki Ber, Tehsil Kasauli, District solan which he had purchased from Ram 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Gopal Malhotra vide registered sale deed dated 13.4.1981. The respondent is owner of adjoining land comprised in khasra No. 140/79/2/1. The respondent while raising the construction on his land encroached upon the suit land by extending projections 6” x 6 karams. The respondent has no right to raise construction and obstruct light, air to the house of the appellant to affect his easementary rights. In these circumstances, the suit was filed. 3. The suit was contested by the respondent, he denied the encroachment over the suit land by him by constructing projections. The respondent took the stand that the construction raised by him is on his own land which has not obstructed light and air of the appellant. He has submitted that he had purchased one biswa land from adjoining owner Kedar Dutt with whom the appellant had purchased part of the suit land vide agreement dated 10.7.1983. In view of exchange of land of appellant with Kedar Dutt the area of the suit land has been reduced to the extent appellant had given to Kedar Dutt. 4. The respondent had also filed counter-claim and alleged that in November, 1983 appellant and his son had encroached land of respondent over Khasra No. 140/79/2/1 measuring 7 biswas 4 biswansis to the extent of 5 feet x 10 feet. The unauthorized construction and encroachment made by appellant was liable to be removed and respondent is entitled to vacant possession. The appellant filed replication and written statement to the counter-claim of respondent and contested the claim of the respondent. 5. On the pleadings of the parties, the following issues were framed:- 3 1. Whether the plaintiff is owner in possession of the land comprised in Khasra No.140/79/1/1 as alleged? OPP. 2. If issue No. 1 is proved, whether plaintiff has constructed the house as alleged? OPP 3. Whether the construction raised by defendant has obstructed the light and air etc. of plaintiff which he used to enjoy by way of easementary rights, if so its effect? OPP 4. Whether the plaintiff has a cause of action? OPD 4-A. Whether the defendant has encroached upon the land of plaintiff comprised in Khasra No.140/79/1/1 measuring 7.4 biswa by way of raising a pillar at stair case at the level of national highway in November, 1993, if so its effect? …..OPP. It emerges from the judgment dated 30.4.1996 that the following issue was also framed:- 4-B. Whether the defendant has encroached upon the land of plaintiff comprised in Khasra No. 140/97/1/1 by laying and extending the projection of his house over the suit land as alleged, if so, its effect? ..OPP. The issues No.1, 2 and 4 were answered in affirmative, issues No.3, 4-A in negative and the learned Sub Judge after discussing issue No.4-B, decreed the suit for permanent prohibitory and mandatory injunction on 30.4.1996. In appeal, the learned District Judge after accepting the appeal on 25.11.1998 dismissed the suit, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree are vitiated because of non-consideration/non-adjudication of issue No.4-B by the first appellate Court? 4 2. Whether the demarcation report submitted by the Local Commissioner Ext.CW-1/B has been mis-read and mis- construed by the first appellate Court? 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the learned District Judge has not considered the issue No.4-B and therefore, impugned judgment, decree are not sustainable. He has submitted that report Ex.CW-1/B of Local Commissioner has been misread and mis-construed by the learned lower Appellate Court and, therefore, impugned judgment, decree are liable to be set-aside. The learned counsel for the respondent has submitted that Local Commissioner had not carried out the demarcation in accordance with law and therefore, Local Commissioner Report Ex.CW-1/B has been rightly rejected by the learned lower Appellate court. It has been submitted that in substance the learned District Judge has considered the entire case of the parties and after due appreciation of material on record has dismissed the suit of the appellant and, therefore, it cannot be said that any prejudice has been caused to the appellant. The learned counsel for the respondent has supported the impugned judgment, decree. 7. The above substantial questions of law No.1 and 2 can be conveniently considered collectively, therefore, both the aforesaid substantial questions of law are taken up for determination. In Salig Ram & Ors. Vs. Ram Lal & Ors. 2008 (1) S.L.J. 419 this Court has noticed State of H.P. Vs. Laxmi Nand and others, 1992 (2) SLC 307, Hari Dass and Others vs. State of H.P., 1996 (2) SLC 370. In 5 Salig Ram (Supra) the para 17 of the judgment in State of H.P. Vs. laxmi Nand and others was noticed as follows:- “It is admitted case of the parties that in so far as the three revenue estates are concerned, the maps prepared during the last settlement were not on square system. Accordingly, the demarcating officer was required to relay the boundaries of the fields sought to be demarcated from the Shajra (village map), prepared at the last settlement. He was required to locate three permanent points on three different sides of the area sought to be demarcated. The three points so selected and to be taken as basis must be those, which are admitted to have remained undisputed from the last settlement. The officer is thereafter required to chain threes three points on the spot and then compare the result with the distance given as per scale on the Shajra. It is only when distance, so compared, agree that the Revenue Officer can proceed with the further work of measurement. A pencil line is supposed to be drawn joining these three permanent points and thereafter perpendiculars are supposed to be drawn from these lines to each of the point, which are required to be located on the spot, in order to enable him to find out the exact distance from these points to the point sought to be demarcated, and then tally the result with the help of the scale on the shajra, which can be drawn only with the help of a crossed staff. The result to be finally checked by measuring on the spot, the distance and then tallying the result with the help of scale on the Shajra. Since this report of demarcation is liable to scrutiny, by way of evidence, it is required that the report of the concerned officer on the face of it must explain the details and the manner as to how he made his measurements, which report must accompany a copy of the relevant portion of the Field Book of current settlement of the village showing Karu kans (dimensions) of the fields of which he took measurements as also a map showing therein the three permanent points, the fields measured and the boundary in dispute. As per the instructions, this is one of the necessary requirements to enable the court to follow the method adopted and also in order to find out the veracity of the proceedings. The other requirement, while submitting the report is to record the statements of interested parties before taking the three 6 permanent points to the effect that all of them agreed and accepted the three points as permanent points on three different sides of the property. In case any objection is raised as to the manner in carrying out the demarcation, the said objection is required to be reduced into writing, so as to avoid the possibility of raising any question specifically and also to enable the court to decide such objections. In case, objection is raised on the spot, the demarcating officer is also required to submit his opinion on such objections. In case, while carrying out the demarcation, any discrepancy is noticed in the area of the fields abutting on the boundary in dispute, as recorded in the last settlement and the one arrived at as a result of the actual measurement on the spot, the report is required to incorporate the same with explanation as to the cause of increase or decrease, if any, discovered on the spot. All these requirements, in our opinion, have been incorporated in the instructions with the ultimate object of ascertaining that while carrying out the demarcation correct method was adopted and no mistake committed.” 8. CW-1 Moti Lal, Tehsildar has placed on record demarcation report Ex.CW-1/B. In his statement in the court he has stated that he carried out the demarcation, the demarcation was started from pucca point ‘C’. He has stated that he enquired about the pucca points but the parties were unable to point out pucca point. In his statement, he has not stated that he fixed three pucca points at the time of demarcation and then carried out the demarcation on the basis of those three pucca points. He has also not recorded the statements of the parties at the time of demarcation. In the absence of fixation of three pucca points by the Local Commissioner, it cannot be said that demarcation report Ex.CW-1/B is legal, hence report Ex.CW-1/B is not a legal piece of evidence which can be relied in order to record a finding that respondent has encroached 7 the land of the appellant. The learned lower Appellate court has rightly rejected the demarcation report Ex.CW-1/B, hence substantial question No.2 is decided against the appellant. 9. Insofar substantial question of law No.1 is concerned, it is not of much significance inasmuch as the appellant has failed to prove encroachment on his land by the respondent. In any case in order to straighten the record, it is necessary to point out that issues were framed in the suit on 15.3.1990. On 18.3.1994 additional issue No.4-A was framed. On 19.4.1996 the learned Sub Judge on the request of the learned counsel for the parties for addressing the arguments fixed the suit on 20.4.1996. On 20.4.1996 the learned Sub Judge directed the Tehsildar, Kasauli to remain present in the Court with certain record on 30.4.1996. On 30.4.1996 as per zimini order the suit was dismissed, but judgment dated 30.4.1996 indicates that suit was decreed. This apart, at page 91/92 of the trial Court file, there are statements of Sh. Braham Raj Sharma, Advocate and Sh. A.S.Kashyap, Advocate dated 24.4.1996 that they have no objection for framing additional issue. These statements are signed by respective Advocates but surprisingly not signed by the Presiding Officer. It is not understandable how the statements of two Advocates were recorded on 24.4.1996 when the suit was not fixed on 24.4.1996. This creates suspicion regarding the framing of issue No.4-B referred to in the judgment of the trial Court. In the zimini order dated 30.4.1996 the suit has been dismissed whereas in the judgment dated 30.4.1996 the suit is decreed. This indicates that the proceedings in the suit were conducted casually. The judicial record is to be maintained with 8 utmost care and caution. The appeal has been decided on the basis of demarcation report Ex.CW-1/B and, therefore, other defects noticed hereinabove in the file of the trial court have no bearing for taking the view that appellant has failed to make out any case for interference. The substantial question of law No.1 is thus decided accordingly against the appellant. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), September 13, 2010 Judge. (GR)