IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 361 of 1999 Date of Decision : December 21, 2009 Sh. Jaindu Ram and another Appellants. Versus Sh. Om Parkash and others Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Tara Singh Chauhan, Advocate, for the appellants. For the respondent : None. Sanjay Karol, J. (Oral) Actual date intimation stands issued to the respondents as per office report dated 27.11.2009. There is no representation on their behalf. The respondents herein are the plaintiffs and the appellants are the defendants. Plaintiffs’ Civil suit No. 27/1 of 1993, titled as Om Prakash & others versus Jaindu & another was dismissed by the trial Court in terms of its judgment and decree dated 28.9.1994. The plaintiffs had filed suit for permanent injunction and in the alternative for vacant possession of the suit land comprised in khewat / khatoni No. 37/43 min, khasra No. 169/8 measuring 0-6 bighas, situated in village Batohali, Pargana Bahadurpur, Tehsil Sadar, District Bilaspur, 1 Whether reports of Local Papers may be allowed to see the judgment? 2 H.P. on the premise that they are the owners of the same. The suit was contested by the defendants. It being their specific case that demarcation was obtained through the revenue agencies and only thereafter the construction work was carried out by them. Based on the pleadings of the parties the trial Court framed the following issues: “1. Whether the defendants have been causing interference in the ownership and possession of the plaintiffs over the suit land as alleged? OPP 2. Whether the defendant has constructed the house in his own land adjoining to the suit land? OPD 3. Whether the plaintiff is entitled to the possession by demolition of the structure as prayed for? OPP 4. Relief.” Opportunity to lead evidence was afforded to the parties and after trial the trial Court dismissed the suit by specifically holding that keeping in view the demarcation report obtained by the plaintiff himself no portion of the suit land was found to have been encroached upon by the defendants. The lower Appellate Court dismissed the plaintiffs’ Civil Appeal No. 86 of 1994 in terms of its judgment and decree dated 7.5.1999. The findings of fact recorded by the trial Court were affirmed by the lower Appellate Court. The appellants-defendants are aggrieved only of the following observation made by the lower appellate court: “… The plaintiff is at liberty to ascertain the boundary of the suit land i.e. Khasra No. 167/9 by getting the demarcation and in absence of the specific proof regarding the encroachment by the defendants over 3 the suit land, he is not entitled for any relief from the Court. Accordingly, the point No. 1 is answered.” Having come to the conclusion that the demarcation report was obtained and proved by the plaintiff himself and having come to the conclusion that no part of the suit land stood encroached by the defendants, the plaintiff could not have been given liberty to again get the land demarcated. In any event they have been made without any necessity or plaintiffs prayer. Also there was no issue about the earlier demarcation being faulty. Hence the observation made by the lower Appellate Court to the extent reproduced above are set aside. The impugned judgment and decree dated 7.5.1999 is modified to the aforesaid extent. The appeal is allowed. (Sanjay Karol), Judge. December 21, 2009 (PK)