IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 201 of 1997. Reserved on: 24.08.2010. Decided on : 21.09. 2010. _____________________________________________________ Brijender Singh and another. …Appellants. -Versus- Raj Kumari. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellants. : Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the respondent. : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 11.07.1997, passed by the learned District Judge, Solan in Civil Appeal No. 33-S/13 of 1994. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the predecessor-in-interest of the present appellants, Mahavir Singh-appellant/plaintiff, who has died during the pendency of the appeal (hereinafter referred to as “plaintiff” for convenience sake), was owner in possession of the land bearing Khasra No. 830/558, Mauja Kather Solan. The respondent-defendant (hereinafter referred to as “defendant” for convenience sake), who was owner of the adjoining plot, started 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. interfering in peaceful possession of the plaintiff by raising construction and by digging pits for erection of pillars. He forcibly erected six R.C.C. pillars on the land of the plaintiff, which he had kept vacant as set back measuring 25 X 1 meters and constructed a retaining wall on the land of the plaintiff illegally and forcibly. In these circumstances, the plaintiff had prayed for mandatory injunction and restoration of possession of the land to him after demolition of the un-authorized construction of the defendant. 3. Defendant resisted the claim of the plaintiff and she has also filed counter claim in her written statement. In the written statement, the defendant, controverted interfering in the ownership and possession of the plaintiff or taking forcible possession thereof. The defendant had pleaded that the plaintiff with malafide intention, has forcibly encroached the adjoining land of the defendant comprised in Khasra No.828/558 by raising four R.C.C. pillars and thereby encroached 12 X 1 meters land of the defendant. Pillars were raised by the plaintiff on the land of the defendant forcibly, despite protest, which encroachment was confirmed by demarcation report of the Naib Tehsildar and also by the report of the District Revenue Officer, Solan. The defendant in counter claim, sought mandatory injunction against the plaintiff for restoring her land comprised in Khasra No. 828/558 to original position after dismantling R.C.C. pillars. 4. In replication, the plaintiff re-asserted his allegations by claiming that the defendant encroached upon the suit land. The counter claim of the defendant was denied in totality. The demarcation reports of Naib Tehsildar and District Revenue Officer, Solan were claimed to be not in accordance with law. The trial court framed the issues on 19.04.1990. The trial Court dismissed the suit filed by the plaintiff on 07.05.1994, however, the counter-claim of the defendant was decreed and a decree for mandatory injunction was passed in favour of the defendant directing the plaintiff to remove the encroachment of 12 X 1 meters made by him over Khasra No. 828/558, as shown in Tatima, Ex.-D4 and further the plaintiff was permanently restrained from interfering in any manner over the land of the defendant comprising Khasra No.828/558, situated in Mauja Kather, Tehsil and District Solan, H.P. The plaintiff preferred an appeal before the learned District Judge against the judgment and decree dated 07.05.1994. The learned District Judge dismissed the appeal on 11.07.1997. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 27.08.1997: 1. Whether in view of the material contradictions in demarcation report exhibit DW-1/C given by the Naib Tehsildar and in demarcation report exhibit D-2, given by District Revenue Officer, Solan, boundaries of the respective plots of the parties to the suit were required to be determined afresh? 2. Whether the courts below have acted illegally and failed to exercise jurisdiction in accordance with law by failure to consider the prayer of Appellant for appointment of Local Commissioner to determine the respective boundaries of their respective plots? 3. Whether the appellate court acted illegally by rejecting the application under order 41 rule 27 CPC, whereby Appellant sought permission to lead the additional evidence? 4. Whether the demarcation report exhibit D-3, given by the District Revenue Officer Solan before Institution of the present suit on 03.12.1989 is against the mandatory provisions of Law prescribed for carrying-out demarcation. 5. Whether the site-plan exhibit PW-1/A, produced by the Appellant showing points of encroachment have wrongly been ignored for consideration? 6. Mr. G.D. Verma, learned Senior Advocate has vehemently argued that the judgments and decrees passed by both the Courts below are against the principles of law and the learned Courts below have not properly appreciated the documentary and ocular evidence. 7. Mr. Bhupender Gupta, learned Senior Advocate has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 10. The defendant had applied for demarcation of her plot on 19.08.1989. The plaintiff was also associated in that demarcation. However, when the statements of the parties were recorded, the plaintiff left the spot. The owners of the other adjoining plots, such as, Dhani Devi, Amar Nath and Ramesh Kumar accepted the demarcation as per copies of their statements Ex.DW-1/B and DW-1/A recorded by the Naib Tehsildar. Since the plaintiff was not in agreement with the demarcation report dated 19.08.1989 Ex.-DW-1/C of the Naib Tehsildar, he filed application dated 25.08.1989 to the Deputy Commissioner (Collector Solan), seeking demarcation of his plot bearing Khasra No. 830/558 through District Revenue Officer, Solan. In sequel to application Ex.-D2, the District Revenue Officer, Solan on 03.12.1989 gave demarcation and submitted report Ex.DW1/F (also exhibited as Ex.-D3). The District Revenue Officer, Solan vide his demarcation report found that the plaintiff had encroached the land of the defendant to the extent of 12 X 1 meters by raising R.C.C. pillars by showing encroached area in Tatima Ex.-DW1/G. The defendant vide her statement made through her husband, copy of which is Ex.DW1/F, accepted the demarcation dated 03.12.1989 given by the District Revenue Officer, Solan. Plaintiff vide his statement before the District Revenue Officer, Solan Ex. DW-1/E claimed that he had erected the pillars on his own land after taking demarcation and on demarcation by the District Revenue Officer, those pillars came on the land of defendant and he, thus, objected about the demarcation. 11. Mr. G.D. Verma, learned Senior Advocate has strenuously argued that the demarcation report Ex. D-3 (Ex.DW1/F) of District Revenue Officer, dated 03.12.1989 is not in accordance with the instructions issued by the Financial Commissioner, Revenue, Himachal Pradesh, as contained in Chapter –X of the H.P. Land Records Mannual. Accordingly to him, three pucca points were not fixed. However, a bare perusal of Ex.-D3 reveals that for ascertaining the Khasra No. 830/558, location of Khasra No. 563 was ascertained and then location of adjoining path alongwith Eastern Western slope was measured and for finding proper location, a point according to measurement was fixed on Western side of the slope and thereafter, Northern slope as per map was measured. Another side of Nullah land was measured as per map and then from centre of Khasra No. 830/558, the area was ascertained. Thereafter, from third side of the land of the defendant and Nullah, the measurement was done. Thus, it is evident that three pucca points were ascertained on different directions and thereafter, the report was prepared. Moreover, the plaintiff has not raised any objection against the report of the District Revenue Officer, Solan, dated 03.12.1989 Ex.-DW1/F. He has only taken objection that he had erected pillars as per demarcation taken earlier. However, this report was not placed on record by the plaintiff. It is the plaintiff, who has approached the Deputy Commissioner (Collector Solan) by moving application on 25.08.1989, seeking fresh demarcation from District Revenue Officer, Solan. The plaintiff has not assailed the veracity of the demarcation report before the appellate authority. The District Revenue Officer has also prepared Tatima Ex.-D4. The second report was prepared in the presence of the parties. DW-3 Satya Dev has deposed that the pillars of the plaintiff were found on the portion of the land of the defendant, comprising Khasra No. 828/558. In view of the observations made hereinabove, it is evident that the demarcation report Ex.D-3 (Ex.-DW1/F), dated 03.12.1989 is in accordance with law. 12. Mr. G.D. Verma, learned Senior Advocate has also drawn the attention of the Court that the Courts below have not considered the site plan Ex.-PW-1/A. However, as far as Ex.- PW1/A is concerned, it does not prove as to on which Khasra number the defendant has erected the iron angles at points 1 to 6 and Danga at point 7. Moreover, the same has not been signed by anyone. PW-2 M.S. Aukta has admitted that he had not called on the spot the Patwari and Kanungo for demarcation of the suit land. 13. It will be apt at this stage to take note of the application preferred by the appellant-plaintiff under Order 26 Rule 9 of the Code of Civil Procedure. The same was dismissed by this Court by a detailed order on 21.06.2010. 14. The plaintiff has also filed an application under Order 41 Rule 27 of the Code of Civil Procedure for placing on record the photographs to establish that defendant-respondent had constructed a huge Dunga on her boundary, which is existing and is visible on the photographs. The defendant has filed a detailed reply to the same. The learned District Judge has rightly dismissed the application by observing that the controversy regarding boundary could not be resolved by placing on record copies of photographs. Moreover, this evidence was also not essential to determine the point in controversy in view of the demarcation report prepared by the District Revenue Officer, Solan on 03.12.1989, i.e., Ex.-DW1/F, against which no appeal was preferred by the plaintiff. 15. Accordingly, in view of the observations made hereinabove, there is no merit in this R.S.A. and the same is dismissed. (Rajiv Sharma) Judge September 21, 2010. (bhupender)