FAO (Ord.) 5 of 2008 7.1.2008 Present: Mr. M.S.Thakur, with Mr. Inder Singh Narwal, counsel for the appellant. This is the plaintiff’s appeal against the order passed by learned District Judge, Shimla remanding the case to the trial Court for decision afresh in accordance with law. The plaintiff instituted a suit for permanent prohibitory injunction against one Smt. Harbans Kaur on the allegations that she was trying to interfere and encroach upon the suit land. The learned trial Court, on consideration of the evidence, granted a decree restraining the defendants from interfering and encroaching or raising construction over the retaining wall of the plaintiff over khasra number(s) as described in the plaint. The defendants appealed and the learned District Judge remanded the matter on the ground that there was no proper demarcation report proved on the record which would substantiate the allegations of the plaintiff for the relief as claimed. The learned -2- appellate Court noticed that Ex.PW-1/A is one such report which pertains to a period much prior in point of time when the suit was instituted. Considering the judgment passed by this Court in Bali Ram versus Mela Ram and another, AIR 2003 Himachal Pradesh, 87, the learned Court held that it was the duty of the learned trial Court to have exercised its powers suo motu and called for a demarcation of the land in order to identify it so that relief could be granted to the plaintiff. The Court holds as a fact that the matter cannot be adjudicated without there being such report on record showing position as it exists on the date when the suit was filed. The plaintiff has appealed against this judgment. I have heard learned counsel for the appellant. Learned counsel has raised a number of points including the fact that Smt. Harbans Kaur who was the defendant had not been impleaded and the present appeal which has been preferred by two persons namely S/Sh. I.P.Singh and Dinesh Kulshreshtha who, of course, had been granted permission by the Court to prefer the appeal as their rights were adversely affected. He submits that the presence of Smt. Harbans Kaur was absolutely necessary. The second point -3- raised is that there is already a demarcation report on record and that no fresh demarcation is required as it effectively resolves the controversy between the parties. These submissions of the learned counsel cannot be accepted. On the first submission made, it is by now well settled that an appeal can be filed by any party adversely affected by the order. In case Court had granted permission under Section 96 of the Code of Civil Procedure to the two of the respondents herein to prefer the appeal, there can be no error of law which can be said to have been committed by the learned court. In any event, there is no material brought before the learned appellate Court to show that filing of the appeal by these two persons has caused any prejudice to the appellant herein. Surely, if their rights were affected and which fact would have been considered by the learned appellate Court while admitting or disposing of the appeal, permission granted to them to file and pursue the appeal cannot be faulted. On the second argument addressed by learned counsel touching the merits of this case, all that this Court can say is that the submission made by learned counsel for the appellant is not -4- justified as the appellate Court holds as a fact that demarcation report was absolutely necessary. Surely, if the Court asks the trial Court calling for such a report in accordance with law laid down by this Court in Bali Ram ‘s case (supra), there can be no illegality in the remand. A demarcation conducted in accordance with law will not adversely affect the rights of the appellant, rather they would become crystallized. In the facts and circumstances of the case, this appeal is dismissed. There shall be no order as to costs. All the miscellaneous applications shall stand disposed of. January 7, 2008 (PC). (Dev Darshan Sud), J.