HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 519 of 2000 & CMP No.1012 of 2010. Decided on: 1.9.2011. Shalender Kumar and another ……Appellant/plaintiffs. Versus Nand Singh ………Respondent/Defendant. Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.R.K. Gautam, Senior Advocate, with Mr.Vikrant Chandel, Advocate. For the respondents: Mr.K.D. Sood and Mr.Mukul Sood, Advocates. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant/plaintiffs under Section 100 CPC against the judgment and decree, dated 7.7.2000, passed by the learned District Judge, Solan, H.P., whereby he affirmed the judgment and decree, dated 14.12.1998, passed by the learned Senior Sub Judge, Solan, dismissing the suit of the appellant/plaintiffs in full. 2. I have heard the learned counsel for the parties and have gone through the record of the case. ________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 3. During the course of arguments, it has been pointed out that a suit for mandatory injunction was filed by the appellant/plaintiffs alleging that the respondent/defendant has encroached upon the suit land by raising some construction. It was pointed out that in one of the reports, it was found that there was encroachment to the extent of 9 square meters and in the second report submitted before the learned trial Court, it was found that the encroachment was to the extent of 10 square meters. Both the reports were not accepted by the learned trial Court and it proceeded to dismiss the suit of the plaintiffs. 4. An appeal was preferred by the appellants and the learned District Judge vide his impugned judgment affirmed the findings of the learned trial Court. It is on the record that during the pendency of the appeal before the learned District Judge, an application under Order 41 Rule 27 CPC was filed by the appellants to place on record a report of the Local Commissioner, dated 1.7.1997, by way of additional evidence. The said application was rejected by the learned Appellate Court and a plea was wrongly taken in this appeal that the said application was not disposed of by the learned Appellate Court. 5. During the pendency of the present appeal, the appellants have also filed another application under Order 41 Rule 27 CPC for adducing additional evidence - 3 - alleging that the appellants have obtained the report on demarcation application filed before the A.C. Ist Grade and the said report dated 24.5.2007 is required to be proved to prove the extent of the encroachment made by the respondent. Once both the reports had been rejected by the learned trial Court, it was for the learned trial Court to have considered the appointment of a Local Commissioner since this fact could only be proved by the report of the Local Commissioner as to whether encroachment has been made by the respondent or not. The plaintiff had no remedy except to prove the report of the Local Commissioner, which should have been appointed by the learned trial Court but even after the reports were rejected, it did not consider the question of appointment of a Local Commissioner. 4. The learned District Judge rejected the application filed by the appellants under Order 41 Rule 27 CPC to prove the encroachment. There is no other alternative left for the plaintiffs except to pray for appointment of a Local Commissioner to prove the report or produce fresh demarcation report, if taken by them in accordance with law. The remedy left is either to prove the fresh report taken by the appellants or to pray to the Court for appointment of a Local Commissioner to consider the question of encroachment made by the respondent. This fact could not have been proved in any other manner and accordingly the present application filed by the appellants deserves to be allowed. - 4 - 5. The said application is, therefore, allowed in view of the above discussion and the appellants are permitted to produce, by way of additional evidence, the demarcation report obtained by them. The said demarcation report shall be proved according to law before the learned Appellate Court and objections, if any, to the said report shall be permitted to be filed by the respondent and after considering these objections, the appeal shall be heard afresh by the learned District Judge and disposed of in accordance with law. Needless to say, the respondent shall be at liberty to lead rebuttal evidence to the said report produced in evidence by the appellants. 6. In view of the above discussion, the appeal is allowed and the case is remanded back to the learned Appellate Court, who shall proceed with the case in view of the directions given above. The parties, through their counsel, are directed to appear before the learned Appellate Court on 26.9.2011. The Registry is directed to send the records of the case alongwith a copy of this judgment to the concerned Court so as to reach well before the date fixed. 7. The appeal as also the application stand disposed of accordingly. September 1, 2011 (V.K. Ahuja), (tilak) Judge.