IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 315 of 1999. Judgement reserved on: 26.3.2009 Date of decision: April 6, 2009. Chatter Singh & anr. ….. Appellants. Vs. Dina Nath …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Romesh Verma, Advocate. For the Respondent : None. Kuldip Singh, Judge. The appellants were plaintiffs and their suit being CS No.93/1 of 91/90 was dismissed by Sub Judge Ist Class (2), Shimla on 16.11.1994 and their appeal No. 3-S/13 of 1995 was dismissed by the learned Addl. District Judge, Shimla on 31.5.1999, they are now in second appeal. 2. The brief facts of the case are that appellants had filed a suit for permanent prohibitory injunction against the respondent regarding land comprised in Khata No. 18, Khatauni No. 18, Khasra No. 69/16, Mouja Kasumpti, Pargana Chabrogti, Tehsil and District Shimla alongwith mandatory injunction directing the respondent to demolish structure already raised on the land in dispute. The case of the appellants is that they are owners of the suit land, adjoining to the Whether the reporters of the local papers may be allowed to see the Judgment? …2… suit land is khasra No. 68/16 owned by respondent, who started construction of his house and encroached upon 12 feet land of the appellants, the appellants opposed the construction of respondent, who agreed to give equal land in exchange to the appellants. The respondent continued with further encroachment of the land of the appellants and, therefore, suit was filed. 3. The suit was contested by the respondent and he took preliminary objections of lack of cause of action, valuation, non- joinder of necessary parties and maintainability of the suit. On merits, the respondent took the plea that he has not encroached upon any land of the appellants and, therefore, there is no question of his agreeing to give any land to the appellants in exchange. The respondent has also pleaded that he has no intention to encroach any land of the appellants. The appellants filed replication and denied the stand of the respondent and reasserted their case. On the pleadings of the parties, the following issues were framed by the trial court:- 1. Whether the defendant has encroached upon the plaintiffs’ land? If so, to what extent? OPP. 2. Whether the suit has been properly valued? OPP. 3. Whether the suit is bad for non-joinder of necessary parties? OPD. 4. Whether the suit in the present form is not maintainable? OPD. 5. Relief. Issues No. 1 to 4 were answered in negative and the suit of the appellants was dismissed by the learned trial court on 16.11.1994. The appeal filed by the appellants also met the same fate, hence the second appeal, which has been admitted on the following substantial questions of law:- …3… 1. Whether there is any stage for appointment of Local Commissioner and since the boundary dispute is involved, therefore, the application for appointment of Local Commissioner would have been allowed. 2. Whether the appellants have made out a case for decree of mandatory injunction on the basis of the oral, as well as, demarcation report Ex. PW 3/A and Tatima Ex. PW 1/A. 4. I have heard Mr. Romesh Verma, learned counsel for the appellants and have also gone through the record, none appeared on behalf of the respondent. The learned counsel for the appellants has submitted that the learned lower appellate court has mis-construed, misinterpreted the material on record. The demarcation report Ex. PW 3/A and Tatima Ex. PW 1/A have been wrongly rejected. The learned lower appellate court should have appointed Local Commissioner to demarcate the land comprised in khasra No. 69/16 in case the learned lower appellate court was not inclined to accept the demarcation report Ex. PW 3/A. Substantial question of law No. 1. 5. The learned counsel for the appellants has submitted that the land in dispute comprised in khasra No. 69/16 is owned by the appellants and the land owned by respondent is comprised in khasra No. 68/16, the respondent has encroached upon the land of the appellants comprised in khasra No. 69/16 during construction, there is a boundary dispute between the parties. The best and effective way to resolve the dispute between the parties was demarcation of land comprised in khasra No. 69/16 and khasra No. 68/16. …4… 6. PW 3 D.R. Bhagta, Field Kanungo had demarcated the land and prepared demarcation report Ex. PW 3/A and found that respondent has encroached 5 biswansis of land of the appellants. The demarcation report Ex. PW 3/A was not accepted by the learned trial court. In the lower appellate court, the appellants had filed an application, under O. 26, Rule 9 read with section 151 CPC for appointment of Local Commissione r to report the extent of encroachment made by respondent on land comprised in khasra No. 69/16. The learned lower appellate court did not accept demarcation report Ex. PW 3/A. The application under Order 26, Rule 9 read with Section 151 filed in the lower appellate court was rejected on the ground that appointment of Local Commissioner in the lower appellate court would not be proper. The additional ground for rejection of the application filed for appointment of local commissioner and demarcation was that in the trial court the application of the respondent for demarcation was opposed by the appellants on the ground that the land had already been got demarcated from the Field Kanungo, and, therefore, there was no necessity for fresh demarcation. 7. The learned lower appellate court has rejected the application wrongly. There is no bar for appointment of local commissioner at the appellate stage. In the present case, the land was earlier got demarcated at the instance of the appellants and they were justified in bringing to the notice of the learned trial court when the respondent filed an application for demarcation that the land had already been demarcated at their instance, therefore, there was …5… no need for fresh demarcation. The trial court had not rejected the demarcation report on the ground that some fault was committed by the appellants but demarcation report was not accepted on some technical grounds. The appellants having realized that the demarcation carried out at their instance was rejected by trial court, they again requested the learned lower appellate court to get the land demarcated, but their request was not accepted and the demarcation report Ex. PW 3/A was also not accepted by the learned lower appellate court. The learned counsel for the appellants has submitted that there is no fault of the appellants for not carrying out the demarcation properly. They got the land demarcated but unfortunately the Field Kanungo did not carry out the demarcation in accordance with law. The learned counsel for the appellants has relied Bali Ram vs. Mela Ram and another 2002 (3) Shim. L. C. 131 and Udai Ram and another vs. Ram Lal, Latest HLJ 2008 (HP) 296, on the point that in the given situation the learned lower appellate court should have appointed the local commissioner to carry out the demarcation of khasra No. 69/16 to find out the encroachment made by the respondent on that khasra number. 8. In the present case, there is a boundary dispute. The appellants have done whatever they could do for carrying out the demarcation of the land, but for their bad luck demarcation was not carried out in accordance with law. In these circumstances, and more particularly in view of Bali Ram and Udai Ram (supra), the learned lower appellate court has erred in not appointing the local commissioner to carry out the demarcation to find out the …6… encroachment, if any, made by the respondent on land comprised in khasra No. 69/16. In these circumstances, the application, dated 28.12.1994, of appellants filed by them, under Order 26, Rule 9 read with Section 151 CPC, in the learned lower appellate court is allowed. The substantial question of law No.1 is accordingly decided in favour of the appellants and against the respondent. Substantial question of law No. 2. 9. In view of disposal of substantial question of law No.1, as discussed above, the substantial question of law No. 2 has become redundant at this stage, and is disposed of accordingly. 10. The learned Additional District Judge after rejecting demarcation report Ex. PW 3/A has recorded a finding that appellants’ evidence is not sufficient to come to the conclusion that respondent has encroached upon 5 Biswansis land belonging to the appellants. It has also been observed that respondent has led no evidence in support of his contentions, but that is of no help to the appellants as the onus to prove the encroachment was on the appellants. This court has allowed the application of the appellants for appointment of local commissioner. The parties will proceed further in light of local commissioner’s report. Therefore, in my opinion, it will be in the interest of justice, if the case is sent back to the lower appellate court so that both the parties may get equal opportunity to pursue their case. 11. The appeal for the reasons discussed above is partly allowed. The judgement and decree dated 31.5.1999 passed by learned Additional District Judge, Shimla in Civil Appeal No. 3-S/13 of …7… 1995 are set-aside and case is remanded back to learned Additional District Judge, Shimla with a direction to appoint a local commissioner to demarcate the land comprised in khasra No. 69/16 to find out the encroachment, if any, made on that khasra number by the respondent and thereafter decide the appeal in accordance with law. The appellants through their counsel are directed to appear before the learned Additional District Judge, Shimla 27.4.2009. The Registry is directed to remit the record of the case to the court of Additional District Judge, Shimla so as to reach that court well before the date fixed. The appeal was filed in the lower appellate court in the year 1994, therefore, the learned lower appellate court is directed to decide the appeal preferably on or before 31.12.2009. April 6, 2009 ( Kuldip Singh ), (Hem) Judge.