IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 247 of 1998 Judgment reserved on: 11.9.2008 Date of decision: 19.9.2008 Tilak Raj …….Appellant Vs. Mahender Singh & another …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Ashwani K. Sharma, Advocate. For the Respondents : Mr. Varun Thakur, vice Mr. Ajay Kumar, Advocate, for respondent No.1. Kuldip Singh, Judge. This appeal has been directed against the judgment, decree dated 20.2.1998 passed by learned District Judge, Mandi in Civil Appeal No.65 of 1995, dismissing the appeal against judgment, decree dated 26.6.1995 passed by learned Senior Sub Judge, Mandi in Civil Suit No.46 of 1991. 2. The facts in brief are that Tilak Raj appellant-plaintiff was allotted land comprised in Khasra No.1596/13441/1, measuring 0-5-0 bigha , situated in Mauza Nagchala/219, Illaqa Balh, Tehsil Sadar, District Mandi. This land was allotted to him by the State in the year 1988. The respondent Mohender Singh owns adjacent land which Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… was allotted to him as nautor and he had constructed a house over it. The respondent No.2 Ved Parkash owns and possesses another adjacent piece of land measuring 0-19-4 bigha adjacent to the land of the appellant. He has also constructed his house on that land. The grievance of the appellant is that Mohender Singh and Ved Parkash have encroached upon his land and they are raising construction there on. The appellant filed suit for injunction against respondents restraining them from interfering on his land and to demolish the construction raised by respondents on the suit land during the pendency of the suit. 3. The suit was resisted by respondents. They contested the claim of the appellant. The respondent No.1 has denied the allegation of interference on the land of appellant or encroachment on any part of the land of the appellant. He has submitted that he has constructed his house on his own land which was allotted to him as nautor prior to the institution of the suit. The respondent No.2 has also contested the suit of the appellant and denied his claim. The learned Senior Sub Judge dismissed the suit on 26.6.1995 against which appellant filed appeal, which has been dismissed by learned District Judge on 20.2.1998. Hence, plaintiff has come in second appeal which has been admitted on the following substantial questions of law:- 1. Whether the application moved on behalf of the Appellant/Plaintiff under order 26 Rule 9 CPC for appointment of Commissioner to demarcate the suit land could be legally and validly dismissed by learned …3… First Appellate Court on the ground that the same was belated? 2. Whether learned Courts below were justified in ignoring the testimony of PW-3 Punne Ram who had demarcated the suit land in the presence of the parties and whether the statement of DW-2 Mohinder Singh Kanungo could be relied upon? 3. Which of the demarcation report was required to be given weight, one given by Naib Tehsildar or the demarcation report given by Kanungo ? 4. I have heard Mr. Ashwani K. Sharma, learned counsel for the appellant and Mr. Varun Thakur, Advocate appearing on behalf of Mr. Ajay Kumar, learned counsel for respondent No.1 and gone through the record. On behalf of the appellant, it has been submitted that learned District Judge has erred in refusing to appoint Local Commissioner to demarcate the suit land, so as to ascertain the encroachment made by respondent No.1 on the land of the appellant. It has also been submitted that statement of PW-3 Pune Ram, Naib Tehsildar has been wrongly rejected in preference to statement of DW-2 Mohinder Kumar,Kanungo. Learned counsel for respondent No.1 has supported the impunged judgment, decree. Substantial questions of law 1 to 3 5. The substantial questions of law 1 to 3 are interconnected, therefore, all of them are being taken up together. The appellant had filed the suit alleging therein encroachment made by respondents on the suit land owned by him. The appellant did not press his claim against respondent No.2 which is so recorded in para- …4… 8 of impugned judgment. Therefore, in the present case, the case of the appellant is to be seen against respondent No.1 only. The learned counsel for the appellant has submitted that learned District Judge has erred in rejecting the application under Order 26 Rule 9 CPC for appointment of Local Commissioner to demarcate the suit land. The suit was filed on 17.12.1992, it was decided by learned Senior Sub Judge on 26.6.1995. The application for appointment of Local Commissioner was filed before the learned lower Appellate Court when the case was listed for judgment. In these circumstances, it appears the application filed by appellant for appointment of Local Commissioner for demarcating the suit land was not bonafide. In addition to this, the appellant filed application for appointment of Local Commissioner but, no application for leading additional evidence was filed, therefore, no purpose would have been served by demarcating the suit land unless the demarcation report was taken on record by way of additional evidence. The learned District Judge has rightly rejected the application for appointment of Local Commissioner for demarcating the suit land. 6. It has been submitted on behalf of the appellant that statement of DW-4 Mohinder Kumar, Kanungo was wrongly preferred in the presence of statement of PW-3 Pune Ram, Naib Tehsildar, who submitted the demarcation report Ex.PW-3/A. It has come in evidence that land of respondent No.1 Mahender Singh was not demarcated at the time of alleged demarcation carried out by Pune Ram. PW-3 did not ascertain fixed points, no musabi was consulted or relied. In fact Ex.PW-3/A is the report of some inquiry and not …5… demarcation report. No naksha Tafawat was prepared alongwith Ex.PW-3/A . In these circumstances Ex.PW-3/A has been rightly ignored by learned district Judge and no fault can be found with the findings recorded by learned District Judge regarding Ex.PW-3/A. The appellant has miserably failed to identify the alleged encroachment made by respondent No.1 on the suit land. DW-4 Mohinder Kumar, Kanungo, Halqua has stated that he carried out the demarcation of the suit land at the instance of Sessions Court and he found that the construction raised by respondent No.1 was on his land. This apart, even if statement of DW-4 is ignored still appellant has failed to prove encroachment on his land by respondent No.1. The leaned District Judge has rightly appreciated the material on record, no case for interference has been made out. The substantial questions of law 1 to 3 are decided against the appellant and in favour of the respondents. 7. No other point was urged. 8. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. September 19, 2008 (sks)