1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 151 of 2005. Date of decision: 16.12.2011. Dalip Singh, son of Shri Basakhu, resident of Mundru, I11. Balh,Tehsil Sadar, District Mandi, H.P. ( aged 35). …Appellant. Versus Narain Singh son of Shri Hari Chand, resident of Mundru, I11. Balh, Tehsil Sadar, District Mandi, H.P ( aged 50) ...Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. Ramakant Sharma,Advocate. For the Respondent : Mr. G.R.Palsra, Advocate. Kuldip Singh , Judge ( Oral). The appellant has come in second appeal against judgment, decree dated 12.01.2005 passed by Presiding Officer, Fast Track Court, Mandi, in Civil Appeal No. 39/2000, 36/2004, affirming judgment, decree dated 18.04.2000 passed by Senior Sub Judge, Mandi, in Civil Suit No. 150/1992. 2. The facts, in brief, are that appellant had filed a suit for possession of land measuring 0-0-3 bighas comprised in Khasra No.1597/1146/1/1, situate in Mohal Bushehar/194, Tehsil Sadar, District Mandi (for short 'Suit Land') after demolition of structure raised 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 thereon. It has been alleged that appellant is owner of the suit land. On 10/11.10.1992, the respondent despite the objections of the appellant forcibly occupied the suit land and constructed a structure over it. It has been alleged that respondent has no right, title and interest over the suit land and, therefore, the suit for possession. 3. The suit was contested by respondent by filing written statement. Preliminary objections of estoppel, no enforceable cause of action and maintainability were taken. On merits, it has been alleged that respondent has raised construction on his land comprised in Khasra No. 89 measuring 0-3-6 bighas. The construction continued for months in the presence of appellant, but he never objected. It has been stated that no encroachment has been made over the land of the appellant. It has been stated that appellant has procured wrong tatima from the revenue Agency. The replication was filed and the case projected by respondent was denied. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant has raised construction over the suit land? OPP. 2. Whether the plaintiff is estopped by his act and conduct to file this suit? OPD. 3. Whether the plaintiff has no cause of action to file this and suit is not maintainable? OPD. 4. Relief. The issues No.1 and 3 were answered in negative and issue No. 2 was held redundant. The suit was dismissed on 18.04.2000. The appeal filed by the appellant was dismissed by lower Appellate Court on 3 12.01.2005, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the learned lower appellate court is right in placing reliance upon Ext. DW2/A to DW2/C the demarcation report, tatima and statement of appellant which pertains to khasra number 91/1 and which is not the subject matter in the present suit? 2. Whether the learned lower appellate court is right in not taking into consideration the documents Ext. PW2/A to PW2/C in its right perspective perusal of which would go to show that the respondent/defendant was found to have encroached over the land to the extent of 0-0-3 biswas? 6. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellant that two Courts below have misconstrued and misinterpreted the evidence on record, more particularly, demarcation report Ex. DW2/A and statements of parties. It has been further submitted by learned counsel for the appellant that respondent has encroached 0-0-3 biswas of land of the appellant. The learned counsel for the respondent has submitted that two Courts below have recorded concurrent findings of facts that respondent has not made any encroachment over the suit land. The reappreciation of the evidence is not possible in second appeal. The prayer has been made for dismissal of the appeal. 7. The substantial questions of law No. 1 and 2 are taken up for determination collectively being inter-connected. The appellant had filed suit for possession on the plea that respondent has encroached the 4 suit land and raised construction thereon. In these circumstances the encroachment could have been proved by way of demarcation. The appellant has not identified the encroachment by way of demarcation. The demarcation report Ex. DW2/A and statements Ex. DW2/B and Ex. DW2/C are with respect to some other land i.e. Khasra No. 91. The appellant has placed on record Ex. PW2/A tatima and statements of the parties Ex. PW2/B and Ex. PW2/C. The appellant has not placed on record actual demarcation report of the suit land. In other words, there is no worth-believing evidence on record to show that any portion of the suit land has been encroached by the respondent. The two Courts below have concurrently held that the appellant has failed to prove encroachment on the suit land. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are decided against the appellant. 8. No other point was urged. 9. The result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), December 16, 2011. Judge. (krt)