IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 98 of 2009. Reserved on: 06.07.2011. Decided on: 12.07.2011. ______________________________________________ Prithi Chand. … Appellant. Versus Mehar Chand and another. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Bimal Gupta, Advocate. For the Respondents : Mr. Neel Kamal Sharma, Advocate for respondent No.1. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 1.11.2008 passed by the learned District Judge, Hamirpur in Civil Appeal No.172 of 2007. 2. Material facts necessary for adjudication of this regular second appeal are that respondent/plaintiff (hereinafter referred to as”the plaintiff” for convenience sake) has instituted a suit against the appellant/defendant (hereinafter referred to as “the defendant” 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - for convenience sake) and proforma respondent/defendant No.2. According to the plaintiff, he was owner in possession of the land comprised in khata No.1 min, khatauni No.1 min, Khasra Nos.383 and 385, measuring 3 kanals 14 marlas and khata No.2 min, khatauni No.2 min, Khasra No.574/384, measuring 13 marlas, total land measuring 4 kanals 7 marlas, situate in Tika Miharpura, Mauza Bhaleth, Tehsil Sujanpur, District Hamirpur as per copy of jamabandi for the year 1994-95 (Ex.P-1). According to him, the defendants were strangers to the suit land and there have been boundary disputes between them as the land of the defendants was adjacent to the suit land. In these circumstances, suit was filed by the plaintiff for declaration and permanent prohibitory injunction and for decree of possession in the alternative. 3. Defendants No.1 and 2 were proceeded ex-parte. However, later on defendant No.1 contested the suit. He has not filed any written statement. 4. The learned Civil Judge (Junior Division), Hamirpur decreed the suit on 11.9.2007. Defendant, Prithi Chand preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 1.11.2008. In these circumstances, this regular second appeal has been filed in this Court and the same was admitted on 24.7.2009 on all the substantial questions of law framed alongwith memorandum of appeal. - 3 - 5. Mr. Bimal Gupta, learned counsel for the defendant has strenuously argued that both the Courts below have misconstrued Ex.PW-3/A, Ex.PW-3/B, Ex.PW-3/C and Ex.PW-3/D. According to him, the Local Commissioner has not carried out the demarcation as per law. 6. Mr. Neel Kamal Sharma, learned counsel for the plaintiff has supported the judgments and decrees of both the courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Since all the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 9. In the instant case, the Local Commissioner was appointed by the learned trial Court to demarcate the suit land. He submitted his report Ex.PW-3/A after visiting the spot on 19.1.1999 and 20.2.2002. Objections were filed by the defendant to the report furnished by Local Commissioner. Reply was filed by the plaintiff. According to the plaintiff, the demarcation has been carried out strictly as per rules and orders of this Court and rules framed by the Financial Commissioner under the H.P. Land Revenue Act. 10. Plaintiff has appeared as PW-1. He has deposed that land comprised in Khasra Nos. 383, 385 and 578/384 measuring 4 - 4 - kanals 7 marlas was owned by him. The land of the defendant was situate adjacent to his land. The defendant has started encroaching upon his land. He then stated that the Local Commissioner was appointed by the Court. He gave demarcation after visiting the spot in presence of the parties and as per report of the Local Commissioner, defendant has encroached upon 10 marlas of the suit land. 11. PW-2, Baldev Singh has supported the version of PW-1. According to him, the demarcation took place in his presence and both the parties were present at that time. He has further stated that the defendant was in possession of 10 marlas of land of the plaintiff. 12. DW-3, P.R. Verma has carried out the demarcation. He has submitted the report Ex.PW-3/A, tatima Ex.PW-3/B, tatima Ex.PW-3/C and Field book Ex.PW-3/D. He has also placed on record the statements of the parties Ex.PW-3/E. According to him, initially, he visited the spot for demarcation on 19.12.1999. Since the musabbis were not produced by the parties, the demarcation was deferred. 13. Defendant has appeared as DW-1. According to him, the Local Commissioner has not carried out the demarcation in accordance with law. He has raised objections, but the same were not decided by the Local Commissioner. He has admitted that he and other defendants as well as the plaintiff were present on the - 5 - spot when demarcation was carried out. He has admitted his statement before the Local Commissioner. According to Ex.P-1, the plaintiff has been found to be owner in possession of the land comprised in Khasra Nos. 383, 385 and the land comprised in Khasra No.573/384 is owned by the plaintiff alongwith Gian Chand. 14. According to the report of Local Commissioner, PW-3 P.R. Verma, the defendants were found in possession of the suit land to the extent of 2 marlas in Khasra No.383/2, 1 marla in Khasra No.383/3 and 5 marlas in Khasra No.385/1. The objections filed by the defendants against the report of Local Commissioner were dismissed. A bare perusal of the report of Local Commissioner makes it clear that the Local Commissioner has fixed three pucca points on three sides with the help of musabbi supplied by the parties. The Local Commissioner has recorded the statements of the parties before he has commenced the demarcation proceedings. He has recorded statements of the parties vide Ex.PW-3/E. The defendant has admitted that he has given the statement before the Local Commissioner. The Local Commissioner has taken B, C and D as three pucca points and thereafter the suit land was demarcated. The only objection raised by the defendants at that time was that the demarcation has not been carried out by PW-3 by taking the boundaries of Khasra Nos. 338 and 375 as pucca points. The Local Commissioner has mentioned in his report in the beginning and towards the end that - 6 - these pucca points could not be taken for the simple reason that these were disturbed and thus, boundaries of these Khasra numbers could not be taken as pucca bannas. The courts below have correctly appreciated the oral as well as documentary evidence adduced by the parties. There is no illegality in the findings recorded by both the Courts below that the defendant has encroached upon the land of plaintiff. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the regular second appeal and the same is dismissed. Ad-interim stay granted on 24.7.2009 is vacated. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. July 12, 2011. (sck).