IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 411 of 2000. Decided on : 15.5.2010. Piare Ram …Appellant. Versus Inder Singh and others. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Rakesh Raghuvanshi, Advocate. For the respondents : Mr. Bhim Raj Sharma, vice Mr. Y.P.S. Dhaulta, Advocate for respondent No.1. Kuldip Singh , Judge (Oral) This appeal has been directed against the judgment, decree dated 19.5.2000 passed by the learned Additional District Judge, Mandi in Civil Appeal No. 19 of 1994 affirming judgment, decree dated 25.2.1994 passed by the learned Sub Judge 1st Class, Court No.II, Mandi in Civil Suit No. 55 of 1991. 2. The facts, in brief, are that respondent No.1 had filed a suit for permanent prohibitory injunction against the appellant and proforma respondents. The proforma respondents were impleaded as proforma defendants in the suit. The case of respondent No.1 was that land comprised in Khata Khatauni No. 37/101, Khasra No. 778 measuring 0-6-16 bighas situated in village Janjehli, Tehsil Thunag, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 District Mandi is recorded in the ownership and possession of respondent No.1 and appellant along with proforma respondents having 1/4th share each. The Public Works Department had acquired 0-1-0 bigha from the above land and, therefore, 0-1-9 bighas of land comes in the share of each party. The houses have been constructed by the parties on their respective shares. The respondent No.1 has constructed his house and shop on Khasra No. 778/3 measuring 0-1-5 bigha, the appellant has constructed his house and shop over Khasra No. 778/2 measuring 0-1-16 bigha and proforma respondents have constructed their houses and shops respectively. There was a vacant piece of land in Khasra No. 778/3 measuring 1 karam x 5 karams on which respondent No.1 had constructed a retaining wall of the height of first storey and the same is used as stairs for the second storey and gallery of his house. The appellant is trying to raise pillars on the disputed wall for making use of the same for kitchen and toilet for which he has no right, title or interest. The appellant is trying to forcibly occupy the same by raising the pillars. The respondent No.1 had prayed for decree of permanent prohibitory injunction and in case appellant succeeds in raising the construction during the pendency of the suit then respondent No.1 has prayed for decree of possession. 3. The suit was contested by the appellant on the ground that the suit is not maintainable and respondent No.1 is estopped from filing the suit. He has submitted that disputed wall was constructed by him for his own use and on his own khasra No. 778/2 which serves the foundation and protection wall of his building. The respondent No.1 has purchased 1/4th share out of Khasra No. 778 3 which comes to 0-1-14 bigha. The alleged vacant space on the retaining wall was left out of Khasra No. 778/2 and on this land the appellant had constructed his retaining wall in 1978. The respondent No.1 had filed an application for partition of the land and according to the mode of partition sanctioned by the Assistant Collector 1st Grade, the appellant had a share 0-1-16 bighas and respondent No.1 was given a share 0-1-9 bighas. The share of appellant comes to 0-1-11 bighas after deducting the area of 0-0-5 bighas acquired for the road by the Public Works Department. But the structure of the appellant is existing over 0-1-16 bighas of land. The appellant is in possession of 0-0-5 bigha of land since April, 1978 over which the appellant has claimed adverse possession. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for the relief of injunction and vacant possession if defendant succeeds to raise construction during the pendency of the suit?OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is within limitation? OPD 4. Whether the plaintiff is estopped by his acts, conduct and deed as alleged?OPD. 5. Whether the defendant has encroached upon the land of the plaintiff by raising construction on the danga/retaining wall of the plaintiff, if so its effect? OPP 6. Whether the plaintiff has no enforceable cause of action?OPD 6-A. Whether the defendant is in adverse possession of the disputed danga/retaining wall, as alleged?OPD. 7. Relief. 4 5. The issues No.1, 3 and 5 were answered in affirmative and issues No. 2, 4, 6 and 6-A were answered in negative and suit was decreed on 25.2.1994 by the learned Sub Judge and it was directed that possession of disputed retaining wall be delivered to the respondent No.1. by demolishing the brick wall raised by the appellant during the pendency of the suit and the expenses for demolition shall be incurred by the appellant. In appeal, the learned Additional District Judge, Mandi on 19.5.2000 has affirmed the judgment, decree dated 25.2.1994 of the learned Sub Judge, hence the second appeal by the defendant No.1 which has been admitted on the following substantial question of law: Whether the courts below have misread and misappreciated the purport and order of the Assistant Collector 1st Grade by which the property in suit was partitioned by the said authority. 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the two courts below have misread, mis- appreciated Ex.DF-1 order dated 3.12.1990 passed by the Assistant Collector 1st Grade and have erred in decreeing the suit of the respondent No.1 The learned counsel for the respondent No.1 has supported the impugned judgment, decree. 7. In the grounds of appeal except for referring the order of A.C.1st Grade, no grievance has been raised by appellant regarding Ex.DF-1 order dated 3.12.1990. The learned counsel for the appellant has submitted that the two courts below have mis-read and mis-appreciated Ex.DF-1 order dated 3.12.1990. The perusal of the judgment of the trial Court indicates that the defence of the appellant 5 is that respondent No.1 has filed an application for partition of the land and according to the mode of partition sanctioned by the Assistant Collector 1st Grade, the appellant had share which comes to 0-1-16 bigha. In the grounds of appeal, it has not been stated how the appellant is taking benefit of Ex.DF-1. The learned counsel for the appellant at the time of hearing of the appeal also has not pointed out how the two courts below have misread and mis-appreciated Ex.DF- 1. The appeal has been admitted on the point of misreading and mis- appreciation of order of the Assistant Collector 1st Grade. It has not been admitted on mis-construction and mis-interpretation of Ex.DF-1. The substantial question of law on which the appeal has been admitted is confined to misreading and mis-appreciation of the document Ex.DF-1 but in second appeal re-appreciation of the appeal is not possible. The two courts below have rightly appreciated the material on record. The view taken by the two courts below emerges from the over all evidence led by the parties. No case for interference has been made out. The substantial question of law, referred above, is decided against the appellant. There is no merit in the appeal which is liable to be dismissed. 8. No other point was urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 15, 2010. (GR)