IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No.92 of 1997 Reserved on: 17.7.2008 Date of Decision : August 1, 2008 Chhabil Dass & Others …Appellants. Versus: Mohar Singh & Others …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants: Mr. S. S. Mittal, Sr. Advocate with Mr. Devraj Advocate. For the respondents. Mr.Bhupinder Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. Sanjay Karol, Judge. The present appeal was admitted on the following substantial question of law:- “1) Whether the demarcation report of a competent Revenue officer can be discarded and the bare statement of a party to the suit can be relied upon for fixing the boundary in between the Abadi-deh and private land?” 1 Whether reporters of local papers may be allowed to see the judgment? 2 Shri Shobhu Ram as plaintiff filed Civil Suit No. 218/91(68/95) for permanent prohibitory injunction against defendants; (1) Shri Chhabil Dass (2) Shri Narain Dass (3) Shri Jhabe Ram. Plaintiff claimed ownership of suit land measuring 35x37x23 feet, depicted in the site plan as ‘A’, ‘B’, ‘C’, situated in Phati Abadi of village and Phati Manikaran, Kothi Kanwar, District Kullu, H.P. (hereinafter referred to as ‘the suit land’). The plaintiff so alleged that the defendants were unlawfully interfering in the plaintiff’s possession and peaceful enjoyment of the suit property. In the alternative, it was also prayed that if the defendants were found to have succeeded in encroaching upon the suit land in that event they be restrained from raising any construction and a decree for possession be passed after demolition of the structure, if any, raised there upon. Defendants resisted the plaintiff’s suit on the ground that the plaintiff was not the owner of the suit land and in fact on one part of the same, defendant No.1 Shri Chhabil Dass had constructed a house. On the basis of the pleadings, the trial Court framed the following issues and additional issue No. (iv) framed by the learned Additional District Judge, Kullu (on remand in earlier proceedings, which are not relevant now) :- 1) Whether the plaintiff is owner in possession of the suit Abadi? OPP 2) Whether the plaintiff is entitled to the relief of permanent injunction? OPP 3 3) Whether the suit Abadi form part of the khasra No.7351 as alleged? OPD 4) Relief. iv) If issue No.(iii) is held in the affirmative, whether the plaintiff –appellant has become owner of the suit property in question by way of adverse possession as alleged? OPP” During the pendency of the suit, the plaintiff expired and his legal representatives;(1) Shri Mohar Singh, (2) Shri Atma Ram and (3) Shri Tirath Ram were impleaded as legal representatives (hereinafter referred to as the ‘legal representatives of the plaintiff’). In terms of its judgment and decree dated 30th March, 1996, the Senior Sub Judge, Kullu, District Kullu, H.P., after appreciating the material on record partly decreed the suit and held that out of the suit land, the plaintiff was in possession of 0-0-5 biswansies of land over which the plaintiff had constructed a wall and even though the plaintiff was not the recorded owner of the same but, however, since he was found to be in uninterrupted hostile possession thereof, having constructed his residential house on the same, he had perfected his title by way of adverse possession. The plaintiff’s suit was decreed to the extent that he being in possession and thus owner of land measuring 0-0-5 biswansis out of khasra No.7351 as shown in Sajra Tatima (Ext.DW-4/C), the defendants were restrained from interfering with such possession. While recording the aforesaid findings, the Court held that the defendants 4 witnesses; Shri Chhabil Dass, defendant No.1 (DW-1), Shri Chabi Lal (DW-2) and Shri Mohar Singh (DW-4) had proved the, demarcation application Ext.DW-4/A, demarcation report Ext.DW-4/B, Aks Sajra Ext.DW-4/C and tatima Ext.DW-4/D, and demarcation carried out on the asking of the defendants depicting the suit land to be part of khasra No.3751 owned by the defendants and not khasra No.7414, the Abadi Deh land, as alleged by the plaintiff. Aggrieved by the same, the legal representatives of the plaintiff filed an appeal before the District Judge, Kullu, in which the defendants also filed cross objections and both were clubbed and heard together. Civil Appeal No. 10/1996 and Cross Objections No.3/1996 were disposed of by the Additional District Judge, Kullu, District Kullu, H.P. by a common judgment and decree dated 3.3.1997. The first Appellate Court, rejected the demarcation report Ext.DW-4/B for the reasons that the plaintiff had not been associated in preparation of the same. The Court, however, after referring to and relying upon the plaintiff’s evidence, decreed the plaintiff’s suit in totality by holding that the plaintiff’s witnesses had been able to prove the site plan Ext.PW-5/A and also identify the suit land to be part of khasra No.7414 the Abadi-deh land in possession of the plaintiff since long and not Khasra No.7351 owned by the defendants. 5 I have heard learned counsel for the parties and have also perused the record. Ext.DW-4/A is the application moved by the defendants seeking demarcation of the suit land. Based there upon, the demarcation was carried out by Shri Mohar Singh (DW-4), Kanungo Halqua Rupi, who has proved on record the demarcation application as also the record of proceedings Ext.PW-2/A, demarcation report Ext.DW-4/B and Aks Sajra Ext.DW-4/C. From the record, it is evident that except for the fact that it is recorded in the Report Ext.DW-4/B that the opposite party refused to make their statements, there is nothing on record to show that the plaintiff was in any manner, associated during demarcation proceedings. No doubt, from the report it is evident that the land measuring 0-0-5 biswansis forming part of Khasra No. 7351 is under the occupation of the plaintiff but, however, this report cannot be accepted for the simple reason that the plaintiff has not been associated at the time of demarcation. Except for the violation of principles of natural justice other procedure required to be adopted by the revenue officials at the time of carrying out demarcation has been complied. Be that as it may be the report cannot be accepted. The merit of the plaintiff’s suit has to be considered on the basis of the material placed and evidence led by the plaintiff. The plaintiff has placed on record the site plan Ext.PA 6 drawn by Shri Krishan Dass (PW-3). The same has been rightly not considered by the first Appellate Court as this witness prepared the same without visiting the spot in question. However, subsequently, the plaintiff placed on record another site plan Ext.PW-5/A prepared by Shri Tirath Ram (PW-5) one of LRs of plaintiff himself. The dispute in question is with regard to the identification of the suit land as according to the plaintiff, the land depicted in the site plan as ‘A’, ‘B’ ‘C’ forms part of Khasra No. 7414 which is the Abadi deh land and not part of Khasra No.7351 which admittedly is owned by the defendants. The defendants have disputed the correctness of the location as the site plan does not depict the correct position existing on the spot. The plaintiff has relied upon the copy of the jamabandi (revenue record) for the year 1988-89 (Ext.PC) to show that Khasra No. 7414 measuring 26-11 bighas is gair mumkin abadi land and the suit land in possession of the plaintiff forms part of the same. To prove the same, the plaintiff examined; Shri Sobhu Ram (PW-1), Shri Arjun (PW-2), Shri Krishan Dass (PW-3), Shri Gauri Ram (PW-4), Shri Tirath Ram (PW-5) and Shri Gulab Chand (PW-6). Shri Tirath Ram (PW-5) is not an expert. He prepared the Plan as per situation at site. The first Appellate Court has heavily relied upon the testimonies of PW-3, PW-4, 7 PW-5 & PW-6, according to whom, there is a retaining wall (danga) in between the suit land and the land belongs to the defendants. The Court found the height of the said wall to be 4 to 5 feet and, therefore, took it to be the dividing boundary between the two khasra numbers in question. In my view, the Court has been extremely presumptuous while coming to this conclusion. The physical characters of the land at site are not in dispute. It is the plaintiff’s case that the defendants started encroaching upon the portion of the land above this retaining wall adjoining to the plaintiff’s house falling in between the houses belonging to the two parties. It is this open land which the defendants are claiming to be part of khasra No. 7351. Except for the self serving and oral testimonies of the plaintiff’s witnesses, there is nothing on record to identify the suit land to be part of either Khasra No. 7351 or 7414. Undoubtedly, the demarcation report Ext.DW-4/B indicates that the plaintiff has encroached upon the land which forms part of Khasra No. 7351 but, however, the same cannot be considered for the reasons already discussed. It has already been noticed that site plan Ext.PW-5/A was not prepared by an expert but by one of the LRs of plaintiff. In fact the same was placed on record after the suit had been filed. The least that was expected of the plaintiff was to place on record the site Plan prepared by the revenue official depicting the exact position of the spot on record. The plaintiff has not 8 been able to identify the land, forming part of either khasra No. 7351 or 7414. In the absence of any documentary, reliable, cogent and convincing evidence, it cannot be held that the plaintiff, by oral and self serving statement had been able to prove the boundaries of the land in question. This Court in Prithi Singh v. Bakshi Ram and another (Latest HLJ 2006(1) HP 5) has held that the dispute between the parties, being a boundary dispute can be solved only by demarcation. This Court in Bali Ram vs. Mela Ram and another (2002 (3) Shimla Law Cases 131), while dealing with some what similar situation held that the Court can suo motu issue local commission for proper investigation and illustration of the matter in dispute. In the present case, the land claimed by the plaintiff to be owned and possessed by him is different from the land claimed by the defendants to be owned and possessed by them and both the lands adjoin to each other. Therefore, keeping in view this factual situation, the only course open is to appoint a Local Commissioner to visit the spot after issuing notice to both the parties and demarcate the suit land in accordance with law. It would be so required for a just and fair decision of the case. Factual position at the spot can be best ascertained by issue of a commission at the costs of the parties. In the given circumstances, the matter is remanded back to the lower 9 Appellate Court. The appeal is disposed of as such and is remitted to the lower Appellate Court with the directions to appoint Local Commissioner to investigate and report about the actual and factual position and after receipt of the report of the Local Commissioner to deal with it as per the prescribed procedure and dispose of the same in accordance with law. The questions of law are answered accordingly. There is no order as to costs. The parties through their learned counsel are directed to appear before the lower Appellate Court on September 11, 2008. The record along with a copy of this order be sent back to the lower Appellate Court immediately. August 1, 2008. (Sanjay Karol) (rana) Judge.