IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.205/1995 Reserved on. 27.5.2008 Decided on.18.7. 2008 Sanjeev Kumar. …Appellant. Versus Prem Pyari. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. no. For the appellant : Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. For the respondent : Mr. Bimal Gupta and Mr. Karan Singh Kanwar, Advocates. Rajiv Sharma, J. This regular second appeal has been filed against the judgment and decree dated 9.1.1995 passed by the learned District Judge, Shimla in civil appeal No. 153-S/13 of 1989. The brief facts necessary for the adjudication of this petition are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit against the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) to the effect that the defendant be restrained from interfering with the possession of the plaintiff over the land comprised in Khasra No. 47, Khata Khatauni No.27/28 min measuring 6 biswas situated in village 1 Whether the reporters of Local Papers may be allowed to see the judgment? no. 2 Bharari, Tehsil and District Shimla alleging that the plaintiff was owner in possession of the suit land and the defendant has no right and title in the same. It is further stated that the defendant started excavating the land and raised the construction over the land of the plaintiff. The suit was resisted and contested by the defendant by filing the written statement. The plaintiff filed replication to the written statement. The learned trial court on the basis of the pleadings of the parties framed the following issues: 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaint has not been properly verified as alleged, if so, its effect? OPD 4. Whether the plaintiff has no cause of action to file the suit? OPD 5. Relief. The findings recorded by the learned Sub Judge on the aforesaid issues are as under: Issue No.1. Yes. Issue No.2 No. Issue No.3 No. Issue No.4. No. Issue No.5 Suit decreed. The trial court on the basis of the oral as well as documentary evidence led by the parties decreed the suit. The defendant was directed to remove the portion of the wall of septic tank found in the land of the plaintiff shown with read line in tatima Ex.PW-1/B and to restore the property in its original position to the plaintiff. 3 It will be apt to note for the completion of the facts that earlier Sh. Ved Prakash, original plaintiff, had filed the suit. He transferred his share in favour of the present appellant Sh. Sanjeev Kumar. The defendant preferred an appeal against the judgment and decree dated 17.11.1989 before the learned District Judge, Shimla. The learned District Judge, Shimla allowed the appeal on 9.1.1995. The plaintiff has filed this Regular Second Appeal against the judgment and decree dated 9.1.1995 passed by the learned District Judge, Shimla. The Regular Second Appeal was admitted on the following substantial questions of law. 1. Whether the learned lower appellate court has erroneously rejected the report of the Local Commissioner by putting reliance on the statement of Patwari Settlement (AW-1)? 2. Whether the report of the Local Commissioner, if not accepted by the appellate court, was not it the bounded duty of the lower appellate court to appoint another Local Commissioner for deciding the question of encroachment when admittedly the dispute between the parties amounts to boundary dispute? 3. Whether the judgment and decree of the learned lower appellate court is vitiated for not correctly understanding the instructions of the Financial Commissioner and the rule of law laid down in 1992 (2), Shimla Law Cases 307? 4. Whether the factum of encroachment can be held to be proved from the report of the Local Commissioner coupled with the spot inspection report made by the Presiding Officer of the Court? Is the spot inspection report of the learned Court 4 important piece of evidence for appreciating the material and evidence on the record? Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgment of the lower appellate court dated 9.1.1995 is not sustainable in the eyes of law. He also contended that the learned District Judge could not ignore Ex.PW-1/A and Ex.PW-1/B. He further contended that the learned District Judge while ignoring the report of the Local Commissioner has given undue importance to the statement of Molak Ram, Patwari, who has produced Ex.AW-1/A and Ex. AW-1/B. Mr. Bimal Gupta, Advocate has supported the judgment dated 9.1.1995 passed by the learned District Judge, Shimla. I have heard the learned counsel for the parties and perused the record carefully. Since all these questions are inter-connected as such to avoid the repetition of discussion of evidence, the same are being taken up together. PW-1 Ved Parkash has deposed that he was owner of land at Bharari measuring 6 biswas in total. Adjoining to this land, Sudesh and Prem Piari had their land. The boundaries of their land were common. According to him in the month of October, 1982, the defendant started excavation work of the land. He further deposed that the defendant encroached upon 5-6 feet land of the plaintiff and he did not stop the construction when requested. He has placed on record copy of the report of Local Commissioner Ex.PW-1/A and the tatima Ex.PW-1/B. He has also placed on record copy of jamabandi 5 Ex.PW-1/C for the year 1979-80. DW-1 Sh. Amar Chand has brought the record and deposed that Mr. Sudesh Kumar had applied for laying sewerage pipe line and also construction of septic tank and the sanction was accorded on 10.11.1982. It will be apt at this stage to observe that the present suit was filed on 22.10.1982. DW-2 Sudesh Kumar is the special power of attorney of his mother Smt. Prem Piari. He has stated that he was living separately from his mother. He has deposed that he has constructed the septic tank and laid the sewerage pipe line in his own land and no one objected to the same. It is in this background that the present Regular Second Appeal is to be adjudicated upon. The report of the Local Commissioner is Ex.PW-1/A. It is evident from the report Ex.PW-1/A that the wall of the defendant was found in the land belonging to the plaintiff to the extent of one foot on demarcation by the Local Commissioner. The encroached portion has been shown by the Local Commissioner in red line in tatima Ex.PW-1/B prepared by the Local Commissioner. The defendant has filed objections against the report of the Local Commissioner. The same were dismissed by the trial court on 23.1.1985. The report of the Local Commissioner has thus attained finality. The learned Sub Judge has also visited the spot as is evident from the judgment of the learned trial court. He visited the spot and found on the spot that the wall which has been shown to have been found by the Local Commissioner in the land of the plaintiff was wall of the septic tank newly constructed by the defendant. According to him there was no other wall of the defendant on the spot adjacent to the land of the 6 plaintiff. The defendant has not led any evidence to establish conclusively that Sudesh Kumar was living separately from Smt. Prem Piari. However, the learned District Judge has relied upon Ex.AW-1/A and tatima Ex.AW-1/B produced by Molak Ram Patwari. Molak Ram, Patwari has stated that he has not noticed any encroachment at the time of settlement. The learned District Judge could not give credence to the statement of Molak Ram, Patwari vis- à-vis the report of the Local Commissioner Ex.PW-1/A. Ex.PW-1/A has been prepared on the basis of the inspection carried out by the Local Commissioner in the presence of the parties. He has reported that the defendant has encroached upon one foot land towards the land of the plaintiff by raising a wall of the septic tank. He has also prepared tatima Ex.PW-1/B. The defendant has filed objections against the report of the Local Commissioner, which stood dismissed as noticed above on 21.3.1985. The report of the Local Commissioner had become final. The learned Sub Judge to ascertain the factual position has himself visited the spot. He has noticed that the defendant has raised construction over the plaintiff’s land. As per copy of jamabandi Ex.PW-1/C for the year 1979-80, Khasra No. 47 has been recorded in the ownership and possession of the plaintiff. The Local Commissioner has been appointed only to see whether the defendant has encroached upon the plaintiff’s land by constructing a wall or not. The report of the Local Commissioner was in conformity with law, which was duly affirmed by the learned Sub Judge when he visited the spot personally. 7 Mr. Bimal Gupta, Advocate has strenuously contended that in view of the order dated 22nd February, 1999 passed by the Settlement Collector, Shimla, the suit preferred by the plaintiff is bound to be dismissed. It is evident from the memo of parties and the order passed by the Settlement Collector, Shimla that the plaintiff has not been arrayed as party. The findings recorded by the revenue authority are not binding upon the plaintiff, more particularly, when he was not added as a party before the Settlement Collector. In view of these observations, the second appeal is allowed. The judgment and decree of the learned District Judge, Shimla dated 9.1.1995 are set aside. The judgment and decree passed by the trial court dated 17.11.1989 are restored. There shall be no order as to costs. (Rajiv Sharma), Judge 18.7. 2008 *Awasthi*