IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 543 of 2006. Reserved on : 10.4.2009. Decided on: 21.4.2009. __________________________________________________ Shri Sohan Singh. … Appellant. Versus Shri Onkar Singh … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ajay Kumar Dhiman, Advocate. For the Respondent : Mr. Karan Singh Kanwar, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal has been filed against the judgment and decree passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No. 36-CA/13 of 2005 dated 1.10.2005. Brief facts necessary for adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for permanent prohibitory injunction against the appellant-defendant (hereinafter referred to as the defendant for convenience sake) in respect of land as detailed in the plaint. He claimed himself to be co-owner in possession of the suit land. It was further averred that the 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 defendant was causing interference in the suit land for the last one year and claimed some portion of the land to be his own. On 10.9.2003, the defendant along with other unscrupulous elements of the village joined hands and interfered in the suit land. The defendant resisted and contested the suit. As per defendant, there is a path adjacent to the suit land on the Government land which is being encroached upon by the plaintiff time and again. The demarcation was also conducted from the competent Revenue Officer. The trial Court dismissed the suit on 26.4.2005. The plaintiff preferred an appeal before the learned District Judge, Sirmaur. The learned District Judge allowed the appeal and the plaintiff’s suit for permanent injunction restraining the defendant from interfering with the suit land was decreed. This regular second appeal was admitted on the following substantial question of law: “Whether there has been misreading of evidence by the learned First Appellate Court?” Mr. Ajay Kumar Dhiman, Advocate has supported the judgment and decree passed by the learned trial Court. Mr. Karan Singh Kanwar, Advocate has supported the judgment and decree passed by the learned First Appellate Court. I have heard the learned counsel for the parties and have perused the record carefully. The plaintiff has appeared as PW-1. He has deposed that on 10.9.2003, the defendant came to cut his trees and told that he shall dispossess the plaintiff from the suit land. PW-2 Shri 3 Sadhu Singh has deposed that two years back, the defendant destroyed the fencing raised by the plaintiff. PW-3 has proved on record spot map Ext. PW-3/A. DW-1 has deposed that there is Khasra No. 84 adjoining to the suit land in the shape of village path. He further deposed that demarcation was got conducted, however, the plaintiff up-rooted the pillars installed by the Tehsildar. He denied that on 10.9.2003, he entered the suit land and destroyed the fencing over the suit land. The defendant has averred in the written statement that there is a path adjacent to the suit land which has been encroached by the plaintiff. This suggestion was put to PW-1 and PW-2 in their cross-examination. The suggestion was that adjacent Khasra No. 83 is “Shamlat” on which mango trees are standing. In the end, it was suggested that in Khasra No. 83, there is a passage. However, defendant himself has deposed that the said path passes through Khasra No. 84 which was a village path. The mango trees are standing on Khasra No. 82. As far as Ext. D-1 is concerned, it does not relate to Khasra No. 82 nor the subject matter of the suit land is involved in the same. In these circumstances, the learned First Appellate Court has rightly set aside the judgment and decree passed by the trial Court. There is no misreading of evidence by the learned First Appellate Court. He has correctly appreciated Ext. D-1 as well as ocular evidence led by the parties. The findings recorded by the learned First Appellate Court are based on facts. 4 Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. April 21, 2009. (cr)