IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 92 of 1995 Reserved on: 26.6.2008 Date of decision: 09.07.2008 Smt. Ram Piari & Ors. ... Appellants Versus Smt. Nanaki Devi & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the respondents: Mr. Vinay Thakur vice Mr. T.R. Chandel, Advocate. V.K. Ahuja, J.: This is a Regular Second Appeal filed by the appellants against the judgment and decree of the Court of learned District Judge, Shimla, dated 7.12.1994, vide which he affirmed the judgment and decree passed by the Court of learned Sub Judge Ist Class, Theog, dated 9.7.1990, dismissing the suit for perpetual and mandatory injunction filed by the appellants. Briefly stated, the facts of the case are that the appellants as plaintiffs filed a suit for perpetual and mandatory injunction as against the respondents who were impleaded as defendants. It was alleged by the plaintiffs that they are owners in possession of the land comprised in Khasra No. 568/369 measuring 6 Biswas and land comprised in Khasra No. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 370. It was alleged that ad-joining land comprised in Khasra No. 569/369 measuring 5 Biswas is in the ownership and possession of the defendants. It was alleged that this land of the parties was below the H.T. road, which was purchased by the parties for construction of their houses. The boundary of the land of the parties comprised in Khasra Nos. 568/369 and 569/369 were not straight on the spot, rather it was oblique and was not making right angle. In between the land of the defendants comprised in Khasra No. 569/369 a part of land of plaintiffs comprised in Khasra No. 370/2 was situated and there was no direct approach for the defendants from Khasra No. 569/369 to H.T. road. It was further alleged that thereafter the parties agreed to exchange part of Khasra No. 568/369 and 370/2 with the part of land comprised in Khasra No. 569/369 in the year 1972 vide agreement executed on 29.5.1972. It was further alleged that the land comprised in Khasra No. 370/2 was given to defendant No. 1 who in lieu thereof gave portion of land comprised in Khasra No. 569/369 to the plaintiffs as per the agreement. The land was levelled and foundations were dug. The plaintiffs constructed a building on their land in Khasra No. 568/369 and part of land of Khasra No. 569/369 in the year 1974 and the wall at the ground level is 33 feet and road level is 44 feet. The plaintiffs alleged that the land measuring 6 feet in width from the wall of their building towards Theog side was in their possession which was kept by them to construct Verandah of the house. The defendants in the year 1974 put up their pillars at a distance of 6 feet from Theog side wall of the plaintiffs’ building and this spot 6 feet in width remained vacant upto August, 1985. It was further alleged that in the year 1985 the defendants dug pits, erected the pillars on the vacant portion of this land. The plaintiffs alleged that the exchange was irrevocable and the defendants have no right to erect the 3 pillars and wall over this vacant land in possession of the plaintiffs. They requested the defendants to demolish the newly constructed portion over this part of the land but the defendants did not agree, hence, the suit filed by the plaintiffs for perpetual and mandatory injunction. The defendants did not deny that an agreement of exchange took place in between the parties on 27.5.1972. However, they pleaded that no formal demarcation was carried out on the spot when the boundary was drawn. The defendants alleged that after fixing boundary line, both the parties constructed breast wall and no space of 6 feet wide was kept vacant and since the parties have raised the construction as per the exchange and even if some portion of construction raised comes in the land of the plaintiffs, the defendants pleaded that they have become owners by way of adverse possession over this part of the land. They pleaded that this construction was raised in July, 1985 to the knowledge of the plaintiffs and this does not entitle plaintiffs to the relief claimed by them. Both the parties led evidence and the learned trial Court concluded that no 6 feet wide vacant side was kept at the time of construction by the parties and the exchange was proved and the plaintiffs were held to be not exclusive owners in possession of the land and the defendants were not proved to have become owners by way of adverse possession. On appeal, these findings were affirmed by the learned Appellate Court. The appeal was admitted by this Court on substantial questions of law No. 1, 4 and 5 formulated at Pages 11 and 12 of the Paper Book. The first substantial question of law is whether the findings of learned first Appellate Court that the report of Local Commissioner is not in accordance with law is sustainable in the eyes of law. The fourth substantial 4 question of law is whether the judgment of the learned first Appellate Court was vitiated on account of misreading the documents particularly agreement Ext. PW-1/A and the last question was whether the Courts below have ignored the admission made by defendant Kishori Lal which was so substantial in nature and whether the statement of DW-4 Mansa Ram has been misread alongwith documents Exts. DW-4/A to DW-4/E. In support of these substantial questions of law, learned counsel for the appellant had submitted that the buildings were constructed by the parties but the defendants did not adhere to the agreement. It was also submitted that the learned trial Court had concluded that no proper demarcation was taken, therefore, encroachment was not proved. The parties agreed for demarcation before the learned first Appellate Court which was not proved and accordingly, the learned first Appellate Court dismissed the appeal. It was submitted that instead of dismissal of the appeal, the learned first Appellate Court should have appointed a fresh Local Commissioner and, therefore, the findings of the learned first Appellate Court dismissing the appeal are not sustainable in the eyes of law. On the other hand, the learned counsel for the respondents had submitted that the plaintiffs had failed to prove Tatima, if any, attached with the agreement in question. It was also submitted that no substantial question of law arises and, therefore, the appeal deserves to be dismissed accordingly since there can be no re-appraisal of the evidence by this Court sitting in second appeal. In regard to the application filed under Order 1 Rule 10 and 22 Rule 10 C.P.C., the submissions made by the learned counsel for the appellants were that since there has been a transfer, the transferee of respondents is liable to be brought on record. On the other hand, the learned counsel for the respondents had submitted that the doctrine of 5 lis-pendens applies and there is no need to implead the transferee and hence, the application deserves to be dismissed accordingly. On a perusal of the record of the case including the pleadings of the parties and the evidence led, it is clear that both the parties have not disputed and have rather admitted that an agreement was entered into in between the parties. The parties have exchanged land on 29.5.1972 i.e. Ext. PW1/A. The terms and conditions of the agreement are clear as to how the exchange was to be effected by transfer of some land owned by the plaintiffs which was to be given to the defendants who were to give in exchange the land owned and possessed by them. It is clear that a portion of the land comprised in Khasra No. owned and possessed by the plaintiffs were given to the defendants in exchange and for proper settlement of the dispute in between the parties and to clear the ambiguity, if any, it was necessary that a Tatima should have been prepared at the time of execution of the agreement which could have helped the parties in pin pointing as to which particular portion of the land owned and possessed by the parties was exchanged. This exchange clearly specify the land which was to be exchanged and it was also mentioned therein that the parties have entered into the land in exchange which will be irrevocable. It appears that no Tatima was prepared at that time since it was not proved on record at that time. The learned trial Court while referring to the evidence led by the parties has referred to the evidence of the plaintiffs to show that 6 feet land was kept vacant away from the boundary wall and accordingly had referred to the testimony of the plaintiffs’ witnesses including PW-2 Phulmu who had worked in the construction of building of the plaintiffs. It was observed that PW-2 Phulmu has stated that when the building was constructed by the plaintiffs, plaintiffs had kept 6 feet open space for 6 construction of the Verandah which was later on covered by the defendants and a pillar was put. A reference was also made to the testimony of PW-5 Dhanna who did not state anything about this vacant space. On the other hand, a reference was made to the testimony of DW-1 Kishori Lal, Attorney of defendant No.1 and DW-4 Mansa Ram, contractor, who had constructed the buildings of both the parties, who stated that no land was kept vacant in between the foundations of the parties. The learned trial Court after referring to the evidence of both the parties in this regard concluded that no vacant space was kept on the spot by the plaintiffs to construct the Verandah and accordingly gave its findings against the plaintiffs. To my mind, dispute in between the parties was not specifically if any vacant space was kept by the plaintiffs at that time or not because the main issue in between the parties was whether this 6 feet space allegedly kept vacant was belonging to the plaintiffs or not and that this land was belonging to them which they got in exchange of the land with the plaintiff. The plaintiffs were required to prove that this land was either the part of the land owned and possessed by them earlier or it was part of the land they got in exchange from the defendants and since the defendants have raised construction over it unauthorisedly, the plaintiffs could have claimed that the defendants are entitled to the relief of mandatory injunction for demolition of the construction raised over it. The case of the plaintiffs could have been proved in case they had been able to prove this fact that this land was belonging to them and since it has been unauthorisedly taken into possession by the defendants they were entitled to the relief in which they have failed. The plaintiffs could have proved this fact only by taking a Local Commissioner to the spot getting the land of both the parties measured and the said report of the Local Commissioner should have been proved on record to show that this land belongs to the plaintiffs which has 7 been unauthorisedly encroached by the defendants. However, neither the plaintiffs took any demarcation at the time of entering into an agreement, nor it was taken at the time they filed the suit or during trial of the case and until and unless, the plaintiffs had been able to prove that this land was part of the land owned and possessed by them whether originally or by way of exchange, the plaintiffs were not entitled to the relief claimed by them. A perusal of the record shows that during the pendency of the first appeal before the learned first Appellate Court, the parties agreed to the appointment of a Local Commissioner who was appointed who submitted his report, which was not relied upon by the learned first Appellate Court and accordingly, it affirmed the findings of the learned trial Court. Coming to the submissions that the Local Commissioner should have been appointed afresh by the learned first Appellate Court, the learned counsel for the appellants had relied upon the following decisions:- The decision in Mst. Rattani and others Vs. Dharam Chand alias Dharman and others, 2000(1) S.L.J. 52, shows that the report of the Local Commissioner cannot be relied upon and treated as evidence without first deciding the objection made thereto by a party. The decision in Kishori Lal and others Vs. Smt. Pingla Devi and others, 1999(1) Shim. L.C. 221, shows that the first Appellate Court rejected report of Commissioner as Commissioner was not examined. It was held that the report of Commissioner cannot be rejected simply because he was not examined. Commissioners being Naib-Tehsildar was responsible and statutory authority. In case of any doubt, the defendant was free to examine him. This decision does not help the plaintiffs. Since the report by the Local Commissioner was apparently rejected by the learned first Appellate Court though the Commissioner was not examined and it could have been rejected even without examining the 8 Commissioner and, therefore, the order of the learned first Appellate Court rejecting the report of the Local Commissioner cannot be said to be incorrect. The decision in Bali Ram Vs. Mela Ram and another, 2002(3) Shim. L.C. 131, shows that when there was a confusion about the identity of the suit land cropped in because of Tatimas, exact position can be ascertained after investigation on spot. Therefore, the appeal was accepted and case was remanded and remitted to lower Appellate Court with a direction to appoint a Local Commissioner. This decision was based upon the facts of that case and in my view it does not lay down any law that wherever the plaintiff fails to prove his case that the suit land belongs to him, the case should be remanded with a direction to the Court to appoint a Local Commissioner. The Local Commissioner can be appointed to clear the ambiguity, if any and in case there are one or more reports and the evidence led is not sufficient to prove which of the reports is correct or should be preferred. The case has been filed by the plaintiffs for mandatory injunction and before they could get the relief of mandatory injunction it was required of them to have taken a Local Commissioner to the spot, obtained his report and then filed the suit for possession or relief of mandatory injunction. In the alternative, they could have applied to the Court during the pendency of the case for appointment of Local Commissioner and both these courses were not adopted by the plaintiffs before filing of the suit and during trial of the case. It is not the duty of the Court to prove the case of the plaintiffs and it is for the plaintiffs to prove their case in which they have failed having taken no report of an expert and that defect in their case cannot be cured by this Court by remanding the case to the learned trial Court or to learned first Appellate 9 Court for appointing Local Commissioner and determine the question if the land forms the part of the suit land or not. The plaintiffs were required to prove their case in which they have failed. Both the Courts below have duly discussed the oral as well as documentary evidence and had not omitted to discuss any material evidence, which calls for re-appraisal of the evidence by this Court. I have mentioned the discussion made by both the Courts below in which they have discussed the relevant evidence and no case is made out for re-appraisal of evidence and forming its own opinion in second appeal by this Court. In view of the above discussion, there is no merit in the appeal filed by the appellants, which is dismissed accordingly. Both the parties are left to bear their own costs. CMP No. 480 of 2007: By this application filed under Order 22 Rule 10 and Order 1 Rule 10 read with Section 151 C.P.C., the appellants/applicants have prayed that since respondent No.1 Nanaki Devi has transferred her right in favour of one Smt. Kamlesh by way of gift during the pendency of the appeal, she should be impleaded as a party to avoid any dispute. No reply has been filed by the respondents. There is no necessity to implead the transferee of the suit property as a party applying the principle of lis-pendens. The transferee will be bound by the judgment passed by this Court and no separate right exists in her favour to defend the case afresh at this stage and, therefore, the application filed by the appellants/applicants is dismissed accordingly. ( V.K. Ahuja ), July 09, 2008 Judge (BSS) 10