IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 441 of 1999 along with CMP No.940 of 2003. Judgment reserved on :23.3.2009 Date of decision: March 31, 2009. Krishan Singh alias Kishan Singh …Appellant. Versus Balram Singh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes. For the Appellant : Mr. Sanjeev Kuthiala, Advocate. For the respondent : Mr. Ajay Sharma, Advocate. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 30.9.1999 passed by the learned District Judge, Una in Civil Appeal No. 113/1993 confirming the judgment, decree dated 12.4.1993 passed by the learned Sub Judge 1st Class, Court No.II, Amb, in Civil Suit No.230/1987 RBT No. 357/1989. 2. The appellant was defendant and Kashmir Singh father of respondent was plaintiff in the suit for permanent prohibitory injunction. The facts, in brief, are that Kashmir Singh filed a suit for permanent prohibitory injunction against the appellant from interfering, encroaching, taking forcible possession, selling, plucking mangoes, cutting and removing mango trees from the land comprised in Khasra No. 2868 measuring 1 kanal 17 marlas, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .yes 2 Village Oel, Tehsil Amb, District Una, on the basis of title and possession. It was pleaded that the appellant has no right, title and interest in the suit land. 3. The appellant contested the suit, he admitted the ownership and possession of Kashmir Singh on the suit land but pleaded that mango tree is on khasra No. 2869 and he is enjoying the fruits of said tree standing on khasra No.2869. The learned trial Court had framed the following issues: (1) Whether the plaintiff is entitled to the relief claimed? OPP. (2) Relief. The suit was decreed on 12.4.1993, Krishan Singh filed appeal against the decision dated 12.4.1993 which was dismissed on 30.9.1999 by the learned District Judge, hence this appeal which has been admitted on the following substantial questions of law:- 1. Whether on the proper construction of the pleadings of the parties and the evidence on record and the provisions of Specific Relief Act, the findings of the Courts below are vitiated? 2. Whether in a boundary dispute, a unilateral demarcation report not in accordance with the High Court Rules and orders and directions of the Financial Commissioner can be relied upon for the purpose of adjudication? 3. Whether the orders of the Settlement Officer during the process of Settlement regarding correction of Karu Kans and the area along with Akash, which had become final, can be ignored by the Court while giving a final decision regarding the boundary dispute and rights of parties? 4. Whether certified copies of the revenue record consisting of the orders of the Settlement Officer and the orders of correction of mutation and the Aksh are perse admissible in evidence and can be taken on record under the provisions of order 41 rule 27 C.P.C.? 3 4. I have heard Mr. Sanjeev Kuthiala, learned counsel for the appellant and Mr. Ajay Sharma, learned counsel for the respondent and have gone through the records. Mr Kuthiala has submitted that in the learned lower Appellate Court the appellant had filed an application dated 31.1.1994 under Order 41 Rule 27 C.P.C. for additional evidence. The appellant had also filed another application dated 13.2.1998 under Order 41 Rule 27 C.P.C. for additional evidence in the lower Appellate Court. The learned lower Appellate Court has considered the earlier application for additional evidence and has not at all considered the second application for additional evidence and, therefore, committed an error of law in dismissing the appeal without considering second application for additional evidence. The learned counsel for the appellant has also submitted that C.M.P. No.940 of 2003 filed by the appellant in the present appeal for additional evidence is based upon facts subsequent to the decision dated 30.9.1999. Therefore, he has submitted that application under Order 41 Rule 27 C.P.C. filed in the present appeal may be allowed. The learned counsel for the appellant has additionally submitted that the question involved in the present case is whether the mango tree is situate on khasra No. 2868 or on khasra No. 2869. It was for the plaintiff to prove the location of mango tree. The Courts below have erred in relying demarcation report Ex.P-4 and decreeing the suit which report according to learned counsel for the appellant has not been proved nor the said report can be taken into consideration as the demarcation on the basis of which the report Ex.P-4 was prepared was not carried out in accordance with rules and instructions. In absence of valid and legal demarcation report, there is no worth believing legal evidence on record to prove that mango tree, in question, is located on khasra No. 2868. The learned counsel for the appellant has prayed for acceptance of the appeal and remand of the case. The learned counsel for 4 the respondent has supported the impugned judgment, decree and has submitted that two Courts below have concurrently held that mango tree is situate on Khasra No. 2868 which is a finding of fact and in the second appeal, re-appreciation of the evidence is not permissible. He has also submitted that the appellant has not made out a case in any application for additional evidence. The second application before learned lower Appellate Court was not pressed. 5. The substantial questions of law No. 3 & 4 are taken up together first as these substantial questions of law are inter-connected and are also linked with second application of the appellant filed in the learned lower Appellate Court for additional evidence. At this stage, it is appropriate to consider C.M.P.No. 940/2003 for additional evidence filed by the appellant in this Court along with substantial questions of law No.3 & 4. In the application dated 13.2.1998, the appellant in the learned lower Appellate Court sought permission to produce following documents by way of additional evidence (i) certified copy of order of Settlement Officer (ii) certified copy of mutation in which the order has been acted upon and complied with in connection with the correction of Karu kans and (iii) Aks settlement prepared earlier. 6. The appellant wants to bring on record by way of additional evidence through CMP No. 940/2003 Misal Haquiat Bandobast of the lands of the parties, demarcation report dated 14.6.2003 along with addendum dated 1.8.2003 and Aks Misal Haquiat Bandobast Jadid Sani. The demarcation report Ex.P-4 carried out on the application of the appellant is already on record on the file of the trial Court. In the plaint the area of the khasra No. 2868 has been mentioned 1 Kanal 17 Marlas. The appellant in the written statement has admitted that suit land is owned and possessed by the plaintiff. It means, there is no dispute with respect to 5 area of Khasra No.2868. There is no whisper in the written statement that because of error in Karu Kans the mango tree comes within the area of khasra No. 2868 and on the basis of correct Karu kans, the mango tree comes within the area of Khasra No. 2869. Similarly, the appellant has not taken stand in the written statement that the demarcation report Ex.P-4 is wrong on the ground that it is based upon wrong Karu Kans also. The documents mentioned in the application dated 13.2.1998 even if are taken on record will not assist this Court in deciding whether mango tree is standing on khasra No.2868 or khasra No. 2869. In addition to this, there is substance in the submission of learned counsel for the respondent that this application was not pressed before the learned lower Appellate Court by the appellant and for that matter, this application was not considered by the learned lower Appellate Court. In any case, this application will be deemed to have been rejected. In the grounds of appeal in this Court, the appellant has not specifically stated that in fact the application dated 13.2.1998 was pressed before the learned lower Appellate Court and despite that the said application was not considered by the learned lower Appellate Court. 7. The documents which were sought to be produced by the appellant by way of second application in the learned lower Appellate court do not have any fresh valid and legal demarcation report, therefore, these documents are of no help in deciding the lis between the parties. These documents would not speak that the mango tree is standing on Khasra No. 2868 or Khasra No. 2869. In these circumstances, the additional evidence sought to be adduced by the appellant by way of application dated 13.2.1998 filed in the lower Appellate Court cannot be allowed. The first additional evidence application dated 31.1.1994 was rightly dismissed by the learned District Judge. The judgment titled as Eastern Equipment & Sales Limited Vs. Ing. Yash Kumar Khanna, (2008) 12 SCC, 739, is not 6 applicable in the facts and circumstances of the case. In that case the Apex Court has held that appeal and additional evidence application are to be taken up together. 8. The appellant by virtue of CMP No.940/2003 wants to produce documents noticed above by way of additional evidence. In this application except application for demarcation, demarcation report dated 14.6.2003, statement of the parties and addendum dated 1.8.2003, other documents like copies of Misal Haquiat and Aks are not of any assistance to this Court in deciding the dispute between the parties. At the cost of repetition, what is to be seen is location of the mango tree in question, inasmuch as the ownership and possession of Khasra No. 2868 and Khasra No.2869 are not in dispute. 9. In demarcation report dated 14.6.2003, there is no mention that said demarcation report was carried out after notice to respondent or he was otherwise present at the time of demarcation. The demarcation dated 14.6.2003 was carried out on the application of appellant and he was present at the time of demarcation. On the contrary, respondent Balram was not present at the time of demarcation. There is nothing on record to show that notice of demarcation was given to respondent Balram. In these circumstances, demarcation carried out on the application of the appellant on 14.6.2003 in absence of respondent is not binding on respondent and will not assist this Court in deciding the dispute. The learned counsel for the appellant has submitted that in fact the report dated 14.6.2003 is based upon latest revenue record after correction of Karu Kans but in light of above discussion, the demarcation report dated 14.6.2003 will not resolve the dispute between the parties. 10. In light of above discussion , learned counsel for the appellant has failed to make out any case in support of substantial questions of law 7 No.3 and 4 as well as for allowing CMP No.940/2003, therefore, substantial questions of law No.3 and 4 are decided against the appellant and CMP No. 940/2003 is also dismissed. 11. The substantial questions of law No. 1 and 2 are inter- connected, therefore, both of them are being taken up together. The learned counsel for the appellant has submitted that the two Courts below have erred in considering the demarcation report Ex.P-4 while decreeing the suit of the respondent. He has submitted that demarcation report Ex.P- 4 is not a legal piece of evidence inasmuch as, the said demarcation report is not based upon demarcation carried out in accordance with law. He has submitted that the learned lower Appellate court has not critically examined the evidence in this respect and has relied State of Rajasthan Vs. Harphool Singh (2000) 5 SCC 652, on the point that first Appellate Court is duty bound to make critical analysis of the matter. It cannot mechanically affirm the findings of the trial Court without due and proper application of mind. There is no dispute with respect to this legal proposition. 12. In the present case, the demarcation report Ex.P-4 was prepared after demarcation on the basis of application of appellant. In Ex.P-4, it has been clearly stated that the disputed mango tree was found on khasra No. 2868 owned by Kashmir Singh. It has also been stated in the demarcation report that the persons who were present at the time of demarcation and got recorded their statements have also stated that the said mango tree from the time of ancestors was found in possession of Kashmir Singh. The learned counsel for the appellant has submitted that the demarcation report Ex.P-4 is not based upon demarcation carried out in accordance with the rules and instructions. He has submitted that there is nothing in the demarcation report how the points were fixed. The 8 Settlement Naib Tehsildar who gave the demarcation report Ex.P-4 could have thrown some light how he carried out the demarcation. The appellant without any objection allowed the demarcation report Ex.P-4 to be taken on record by way of evidence, now it is too late for him to object that details of the demarcation have not been given in Ex.P-4, therefore, demarcation report Ex.P-4 is not a legal piece of evidence. In P.C. Purushothama Reddiar Vs. S. Perumal, AIR 1972, S.C. 608, the Supreme Court has held that the party who has not objected when the document was taken in evidence, cannot be permitted to raise objection lateron regarding the admissibility of document. The appellant himself could have summoned the Settlement Naib Tehsildar in evidence who had given the demarcation report Ex.P-4. In the demarcation report Ex.P-4, it has been clearly stated that mango tree in question is standing on Khasra No.2868. 13. The demarcation report Ex.P-4 has attained finality as it was not challenged by the appellant in the hierarchy of revenue authorities. It is admitted case of the parties that Khasra No. 2868 is owned and possessed by the respondent. It has not been pointed out on behalf of the appellant what material evidence has been ignored by the two Courts below having bearing on the decision of the case. Similarly, it has not been specifically pointed out what pleadings and evidence have not been properly construed by the two Courts below. The two Courts below have properly appreciated the material on record. In second appeal, re-appreciation of the evidence is not permissible. The substantial questions of law No.1 and 2 are decided against the appellant. 14. The learned counsel for the appellant has relied Bali Ram Vs. Mela Ram and another, 2003 (1) S.L.J. 204, and submitted that fresh demarcation may be ordered to find out location of mango tree. The appellant has failed to make out a case that demarcation report Ex.P-4 is 9 not a legal piece of evidence or it is based upon demarcation which was not carried out as per rules and instructions. In presence of Ex.P-4 no fresh demarcation can be ordered and, therefore, Bali Ram (supra) is not applicable. 15. No other point was urged. 16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. March 31, 2009.(GR)