IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.36 of 1995. Date of decision:29.05.2008. Shyam Sunder …Appellant Versus Maheshwar Singh & Another …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.B.K. Sood, Advocate. For the Respondents: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. This appeal has been filed by the plaintiff against the judgment and decree of the two Courts below dismissing the suit instituted by him praying for a permanent prohibitory injunction with respect to the suit land on the allegation that respondents- defendants were encroaching on the land of the plaintiff. On the two settled issues, (i)as to whether defendants are interfering with the possession of the suit land and (ii) whether the plaintiff is entitled to the injunction, the learned trial Court held that 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 on the evidence on record no encroachment was proved. On the submissions of the parties, the learned Court held that the plaintiff had been unable to prove the encroachment on the land. It was also held that the Local Commissioner appointed for determining the encroachment prepared a detailed report containing measurements of the land which demarcation was carried out on 24.10.1989. The Local Commissioner proved his report OW-1/A which did not establish the case set out by the plaintiff. The Court also considered the evidence of PW-2 Jagat Ram, Field Kanoongo, and held that the report furnished was vague and did not state the extent of the alleged encroachment. The suit was accordingly dismissed. In appeal, the learned District Judge re- appreciated the entire evidence and held that report Ex.OW-1/A, which was prepared by the Tehsildar, Kullu, was in accordance with law. He re-appreciated the evidence and found that the plaintiff-appellant could not establish as to whether there was encroachment of any specific portion of the land. Shri Jagat Ram, Kanoongo, (PW-2), who was appointed as Local Commissioner by the Court, had prepared the tatima Ex.PW-2/B which also did not advance the case of the plaintiff any further. The report of this witness was not accepted and was set aside. Thereafter Shri Mohinder Singh, Tehsildar, was 3 appointed as Local Commissioner, who submitted his report Ex.OW-1/A. This appeal was admitted on substantial questions of law as formulated with the grounds of appeal. Three questions for determination in this case are:- “1. Whether I view of the report, of Local Commissioner PW-2/B and statement of Local Commissioner, PW-2, Jagat Ram, which had not been discarded and which had been in accordance with the Rules and Orders of the High Court, the report of Local Commissioner DW- 1/A could be accepted? 2. Whether on the material on record, the only conclusion that could be drawn was that plaintiff was owner in possession of the land and having been forcibly dispossessed, was entitled to the restoration of possession? 3. Whether the findings of the court below that the plaintiff was the co-owner in Hissedari possession and thus not entitled to decree for injunction is not sustainable in law?’ Question No.1: On the first question, all that need be said is that repeated attempts for demarcation have been made. Ex.PW-2/A has been scrutinized by the two 4 Courts below and the order rejecting this report has been found to be in order. The Courts below have considered the matter in detail and held that this report cannot be accepted. When objections were raised regarding the report Ex.OW-1/A, the learned Court by a detailed order has held: “4. The plff had filed replication controverting the allegations of the dfdts. Afterwards, the plff had applied for local investigation. He had contended that he had purchased the land measuring 9 biswas in khasra No.2306/1983. The dfdts had stated that the plff had been in possession of the land measuring 9 biswas. The plff had refuted this contention. Hence, according to the plff, case for local investigation had been made out. The application for local investigation of the plff had been considered and allowed vide order dated 30.3.89. The Filed Kanungo had been pointed as Local Commissioner. The Filed Kanungo had reported that the plff had not been in possession of the land measuiring 9 biswas. Lnstead he had been in possession of the land measuring 8 biswas 12 biswancies. This report of the Local Commissioner had been assailed by the dfdts. Vide order dated 22.9.89, with the consent of the parties, the report of the Filed Kanungo had been 5 set aside. Tehsildar Kullu had been appointed Local Commissioner. The Tehsildar had demarcated khasra No.2306/1983 on 24.10.89 and had found the plff in possession of land measuring 9 biswas of khasra No.2306/1983. The Local Commissioner had also reported that the land under the possession of the plff abutted Raghunathpur public street. In the event, the plff was to construct multi storeyed building in the area in his possession, increase of one biswas per storey shall accrue in his favour. This was so because the retaining wall supporting the Raghunathpur street was not vertical. This report of the Local Commissioner had been assailed by the plff. It had been contended that the Local Commissioner had not carried out demarcation in accordance with High Court Rules and Orders and the instructions on the subject. The report of the Local Commissioner was liable to be set aside. The dfdts had filed reply and had supported the report of the Local Commissioner with the result the above issues had been struck. 5. The plff had cross examined the Local Commissioner. The report of the Local Commissioner and the field map prepared by him had been tendered in evidence. 6 6. I have heard both the parties and have carefully gone through the entire record. I find that the report of the Local Commissioner could not be set aside. The Tehsildar, had given elaborate report. The disputed land was situate within the jurisdiction of Municipal Committee Kullu. Hence, the Tehsildar had made best possible efforts to arrive at accurate conclusion. The Tehsildar had found the plff in possession of land measuring 41 karms in length. The breadth was 6 karms on one side and 3 karms on the other side. The area under the possession of the plff, thus had worked out to 9 biswas. The ld.csl for the plff had argued that the Local Commissioner was required to calculate the area by applying triangle system. The ld.csl had argued that the method of calculation of area of length multiplied by breadth as adopted by the Local Commissioner had been abandoned. According to the ld csl for the plff, the measurement through triangle system had been adopted in recent years. Measurement so done did not admit any mistake. Hence, the report of the Local Commissioner was liable to be set aside. I find no substance in the contention of the plff. The ld. csl for the plff could not point out as to how the calculation of the area done by multiplying length and 7 breadth was wrong. The Local Commissioner had contended that even if the calculation of the area as per field map prepared byhim was done by applying triangle method, the result shall be the same. The ld.csl had pressed for adjournments in order to confront the Local Commissioner with the result of calculation done by applying triangle method. However, the ld.csl could not point out as to how the calculation of the area done of the field map of land measuring 41 karms in length and 4-1/2 karms in breadth could be less than 9 biswas. The ld. csl had also argued that the Field Kanungo had given a finding in favour of the plff. I have gone through the report of the Field Kanungo. The Field Kanungo had not at all given the details of the measurement done by him. He had simply stated that the plff had been found in possession of the land measuring 8 biswas 12 biswancies. The report of the Field Kanungo had been considered defective even by the plff and that was why the same had been set aside with his consent. I have not been able to find any infirmity in the report of the Local Commissioner. Hence, the objection petition of the plff against the report of the Local Commissioner is rejected. The report of the Local Commissioner is confirmed. Issue 8 No.1 is decided in favour of the dfdts and against the plff.” This is a complete answer to the question raised by the appellant herein that the Courts have not considered the objection raised to the demarcation. I do not find any substance in the submissions made by the learned counsel appearing for the appellant that this report deserves to be rejected. This question is, therefore, decided against the appellant. Questions No.2 & 3: Answers of these two questions would follow on the finding of the answer to question No.1 which has been considered in detail at the time of rejection of the objection filed by the appellant herein and also at the time of final hearing of the appeal by the appellate Court. The finding of fact arrived at by two Courts below cannot be gone into by me under Section 100 of the Code of Civil Procedure. These two questions are, therefore, decided against the appellant. An application being CMP No.992 of 2006 has been filed by the appellant herein under Order 41 Rule 27 of the Code of Civil Procedure for production of additional evidence coupled with a request that a Local Commissioner be appointed under Order 26 Rule 9 of the Code of Civil Procedure. 9 I have considered the submissions made by the learned counsel in detail. The allegations herein are that the demarcation report OW-1/A has been manipulated and has not been proved on the record. The plaintiff-appellant seeks nothing, but re-opening the entire controversy by invoking the provisions of Order 41 Rule 27 and Order 26 Rule 9 for carrying out fresh demarcation which is nothing but an attempt to re-agitate settled findings of fact. This application is nothing but an abuse of the process of law and accordingly rejected. This application was considered at the time of hearing of the appeal and a separate order has been passed herein. Both the appeal and the application are dismissed. There shall be no order as to costs. May 29, 2008. (Dev Darshan Sud) (aks) Judge.