IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 266 of 2007. Reserved on: 28.2.2008. Date of decision: 01.3.2008. Principal D.A.V. Public School ….. Applicant Versus Smt. Yashodha & Ors. …. Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Satyen Vaidya, Advocate. For the respondents: Mr. Romesh Verma, Advocate. V.K. Ahuja, J. This is a Regular Second appeal filed by the appellant against the judgment and decree of the Court of learned Additional District Judge, Shimla, dated 21.3.2007, vide which he affirmed the judgment and decree dated 31.12.2004 passed by the learned Civil Judge (Junior Division), Court No. 3 Shimla, dismissing the suit for permanent prohibitory and mandatory injunction filed by the appellant as against the respondent. Briefly stated the facts of the case are that the appellant filed a suit for permanent, prohibitory and mandatory injunction as against the respondent. It was alleged that the land in suit was earlier 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 owned by S.D.A. which was transferred in favour of the plaintiff vide lease dated 10.10.1991. The plaintiff had been running a school in these premises after constructing a building and retaining wall. He alleged that the defendant without any right or title demolished about 8 feet portion of the retaining wall of the plaintiff situated over the suit land and further threatened to encroach upon the land belonging to the plaintiff, hence the suit filed by the plaintiff. The defendant denied the allegations and pleaded that he is not encroaching upon the land of the plaintiff, rather the plaintiff is encroaching upon the land of the defendant for which a report was lodged with the police. The suit was tried by the learned trial Court who mainly held that the plaintiff had failed to prove that any retaining wall existed on the suit land since no demarcation was taken and the suit was dismissed by the learned trial Court, which findings were affirmed on appeal. Heard. The contentions putforth by the learned counsel for the plaintiff/appellant were that the plaintiff had clearly alleged and stated so on oath that the suit land belonged to him and the retaining wall in question had been damaged by the defendant and, therefore, the findings to the contrary of both the Courts below are liable to be reversed. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons given therein supplementing it by the submission that there is no demarcation report proved since no demarcation was ever taken by the plaintiff who had failed to prove that any retaining wall was constructed on the suit land 3 and no substantial question of law arises and as such, the appeal is liable to be dismissed. The substantial question of law framed alongwith the grounds of appeal is mainly that the findings of the Courts below are perverse based upon mis-construction and mis-interpretation of oral as well as documentary evidence and that identity of the retaining wall in question on the suit land was not denied by the defendant. Therefore, it was submitted that the plaintiff was entitled to the relief claimed by him. I have gone through the judgments of both the Courts below. The learned trial Court had discussed at length the evidence of the parties particularly of the plaintiff in regard to the fact that no demarcation was ever taken before constructing the retaining wall and no demarcation report was ever procured or produced in Court during the trial of the case. The defendant had not specifically claimed that the said retaining wall was constructed over his land but he had denied that any retaining wall was constructed on the suit land. The plaintiff could be said to be entitled for the relief of injunction only in case he was able to prove that the land over which the retaining wall was allegedly constructed belonged to him for which a demarcation was required to be taken either before the construction of wall or before filing of the suit which was never done by the plaintiff. The plaintiff simply alleged that the boundary wall was constructed within his land and filed the suit which fact had been denied by the defendant. During the course of arguments no document was referred to which was not considered by the learned trial Court or by the learned first appellate Court or there was misreading of the oral testimony of any of the witnesses. The learned trial Court had come to a right conclusion that the demarcation report was required to be proved before 4 it could be proved that whether any boundary wall in question was allegedly constructed over the suit land and as such, the plaintiff was entitled to the relief of injunction permanent or mandatory injunction claimed by him. In view of the fact that there is nothing on record to show that there was any misreading of oral or documentary evidence by the Courts below while appreciating the evidence, no substantial question of law arises for consideration or for admitting the appeal. Therefore, the judgment of the learned first appellate Court affirming the findings of the learned trial Court do not call for an interference by this Court and as such, there cannot be any reappraisal of the evidence by this Court sitting in second appeal. There is no merit in the appeal filed by the appellant, which is dismissed accordingly. Parties are left to bear their own costs. Decree sheet be prepared accordingly. ( V.K. Ahuja ), March 01, 2008 Judge (BSS)