IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 264 of 1999. Judgment reserved on : 28.5.2009 Date of decision : June 17, 2009. Keshav Ram .…Appellant. Versus Supi Devi .. ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. K.D.Sood, Advocate. For the respondents. : Ms. Seema Guleria, Advocate Kuldip Singh , Judge The plaintiff has come in second appeal against the judgment, decree dated 24.5.1999 passed by the District Judge in Civil Appeal No. 3/1999 affirming judgment, decree dated 11.11.1998 passed by the Senior Sub Judge, Lahaul & Spiti at Kullu exercising the powers of Sub Judge 1st Class, Kullu in Civil Suit No.22 of 1997. 2. The facts, in brief, are that appellant had filed a suit for permanent prohibitory injunction against the respondent alleging that he is co-owner in joint possession of land to the extent of 17/24 shares comprised in khasra No. 795, khata khatauni No. 84 min/136 min measuring 0-4 biswas Phati Balh, Kothi Maharaja, Tehsil and District Kullu. It was pleaded that some Kahu trees were standing on the suit land. The leaves and branches 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 of such trees were being used by him as fodder for cattle and fuel purposes. The respondents without any right, title and interest were creating boundary dispute and started causing unlawful interference in possession of the appellant over the suit land and they were also threatening to cut and damage the Kahu trees standing on the suit land. On those facts, the appellant filed the suit for permanent prohibitory injunction. 3. The suit was contested by respondents by filing a written statement. They took preliminary objections of lack of cause of action in favour of the appellant, the appellant has not approached the Court with clean hands and he has suppressed true and material facts, the appellant is not entitled to discretionary relief of injunction as the appellant has filed the suit malafidely in order to harass the respondents. On merits, respondents denied the case of the appellant. It was pleaded that adjacent to suit land is Government land, which was encroached by Mani Chand predecessor-in- interest of the respondents about 50 years ago, Mani Chand planted Kahu trees on the encroached land and fenced it for using the produce of said Kahu trees. The said encroached land is now in possession of respondents along with Kahu trees, the appellant has no concern with the said land and trees. The respondents never interfered on the suit land. The appellant filed replication and while denying the case of the respondents, reiterated his case set-up in the plaint. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to relief of injunction, as prayed for? OPP. 2. Whether the plaintiff has got no cause of action to file the present suit?..OPD. 3. Whether the plaintiff has not come to court with clean hands and as such, he is not entitled for relief of injunction as prayed for? OPD. 3 4. Whether the plaintiff has filed the suit malafidely to harass the defendants and as such, they are entitled for special costs? OPD. 5. Relief. The issue No.1 was answered in negative, issues No.2 and 3 were held become redundant, issues No.4 was held in negative and the suit was dismissed by the trial Court on 11.11.1998. In appeal, the District Judge on 24.5.1999 affirmed the judgment, decree dated 11.11.1998, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the judgment of the Distt. Judge suffers from infirmity for not having decided the application for the appointment of Local Commissioner and spot inspection under Order 26 Rule 9 and 10 and under Order 18 Rule 18 CPC and the same is liable to be set-aside? 2. Whether the Courts below have mis-read and mis- construed the oral and documentary evidence and wrongly discarded the report of the Local Commissioner PW-5/B, Jamabandi Ex.PA and the Statement of Bhola Ram and Keshav Ram which has resulted in failure of justice? 4. Heard and perused the record. 5. The counsel for the appellant has submitted that the learned District Judge has not decided the application for appointment of Local Commissioner to demarcate the suit land and, therefore, the impugned judgment, decree is liable to be set-aside. The Courts below have mis-read and mis-construed the oral and documentary evidence and wrongly discarded the report of the Local Commissioner Ex.PW-5/B, jamabandi Ex.PA and statements of Bhola Ram and Keshav Ram. The learned counsel for the respondent has supported the impugned judgment, decree. 4 6. The first appeal was filed on 6.1.1999 and it was ordered to be listed before the District Judge on 11.1.1999. On 11.1.1999, the District Judge directed the office to check and report and the appeal was fixed on 13.1.1999. On 11.1.1999, the appellant had filed an application under Order 18 Rule 18 read with Section 151 C.P.C. for spot inspection and in alternative for appointment of Local Commissioner under Order 26 Rules 9, 10 C.P.C. The appeal in the lower Appellate Court was taken on various dates, but perusal of order sheet indicates that the appellant never brought to the notice of the District Judge application under Order 18 Rule 18 read with Section 151 and Order 26 Rules 9, 10 C.P.C. There is no indication in the impugned judgment that at the time of hearing of appeal by the lower appellate Court the said application was pressed before the District Judge. Therefore, even if there is no specific order on the said application, it will be deemed to have been rejected by the lower Appellate Court. In any case, pre-dominantly the purpose of the application was spot inspection and in alternative for demarcation of the suit land. The dispute is with respect to kahu trees which can be decided on the basis of evidence and not by spot inspection. The nature of the dispute is not of such type which can be decided by spot inspection. The demarcation report Ex.PW-5/B was already on record. In the said application, nothing has been stated why in presence of demarcation report Ex.PW-5/B another demarcation of the disputed land should be carried out. Therefore, second demarcation of the suit land was not possible. The application under Order 18 Rule 18 read with Section 151 and Order 26 Rules 9, 10 C.P.C. in the facts and circumstances of the case was mis-conceived and therefore, no prejudice has been caused to the appellant even if that application was not allowed. The substantial question of law No.1 is decided against the appellant. 5 7. The demarcation was carried out by PW-5 Bhola Ram and Assistant Collector vide order dated 7.1.1997 approved the said demarcation. The suit was filed by the appellant on 22.2.1997. In para 4 of the plaint reference to demarcation through revenue agencies has been pleaded. The demarcation was not carried out through Local Commissioner, appointed by the Court. It was for the appellant to prove that the kahu trees are on the disputed land and respondents are threatening to interfere on the suit land. In demarcation report Ex.PW-5/B, there is nothing to show that the kahu trees are on suit land. 8. PW-1 Keshav Ram in his statement has stated that respondents interfere on the suit land by cutting fodder and fuel wood. There are kahu trees on the suit land. The respondents lop kahu trees. PW- 1 has not given any specific instance of interference by the respondents on the suit land. PW-2 Achhar Singh has also stated that there are about 10 /15 kahu trees on the suit land. He has stated that respondents interfere on the suit land. PW-3 Khim Singh has stated that there are 15 / 20 kahu trees on the suit land. He has stated that respondents interfere on the suit land. PW-5 Bhola Ram in answer to court question has stated that kahu trees are on Government land. The statement of PW-5 Bhola Ram has contradicted the statements of PW-1, PW-2 and PW-3 that kahu trees are on suit land. According to PW-5, kahu trees are on the Government land. The witnesses of the appellant have generally stated interference of respondents on the suit land without giving specific instance of interference. Ex.PA jamabandi 1993- 94 does not show any tree on khasra No. 795. 9. DW-1 Shup Dassi has stated that kahu trees are on Government land. There is no Kahu or Biul tree on the suit land. She has denied interference on the suit land. The two Courts below after due appreciation of evidence have recorded a finding of fact against the 6 appellant. The learned counsel for the appellant has failed to point out any mis-construction of oral and documentary evidence. There is no perversity in the impugned judgment, decree. In second appeal the evidence cannot be re-appreciated, resultantly, the substantial question of law No.2 is decided against the appellant. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. June 17, 2009 (Kuldip Singh) (GR) Judge.