IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 169/1999 Reserved on: 28.5.2009 Decided on:5.6. 2009 Jagat Pal Sharma. …Appellant. Versus Sunera Kapoor. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No For the Appellant : Mr. Ashok Sood, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 15.1.1999 passed by the learned Additional District Judge, Shimla in civil appeal No. 48-S/13 of 1996. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for demarcation and permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) for restraining her from interfering over the suit land comprised in Khasra No. 305/258/2 1 Whether the reporters of Local Papers may be allowed to see the judgment?No. 2 measuring 2 biswas. The case of the plaintiff further is that he is in possession of the land and building situated in Mauja Baghog, Tehsil and District Shimla, Himachal Pradesh. He has purchased this plot from one Sh. E. Gedian vide sale deed dated 20.12.1984. He is residing in the aforesaid premises. It is further averred that the defendant also purchased from the same owner land and building comprised in Khasra No. 305/258/4 measuring 5 biswas. She filed a suit bearing civil suit No. 30/1 of 1989. She obtained ad-interim order which was made absolute by the learned Sub Judge, Shimla on 18.5.1989. It is further averred that he got the land demarcated by the Field Kanungo on 20.8.1987. The defendant was apprised by the Field Kanungo and she did not agree and claimed part of the vacant land bearing Khasra No. 305/258/2 belonging to the plaintiff. The defendant in connivance with the police removed the water tank of the plaintiff from the vacant piece of land. The defendant contested the suit. It was admitted by her that another suit was pending in the court of Sub Judge 1st Class, Shimla She has denied that the suit was filed under the garb of some mis-description of the boundaries. She denied that the demarcation of the suit land was conducted by any Field Kanungo. She further alleged that the plaintiff had started encroaching over her land. The trial court dismissed the suit on 31.5.1996. The plaintiff preferred an appeal before the learned Additional District Judge, Shimla. He dismissed the same on 15.1.1999. The present Regular Second Appeal has been filed against the judgment and decree dated 15.1.1999. The same was admitted on the following substantial questions of law: 1. "Whether suit for demarcation is maintainable? 2. Whether a fresh cause of action arises to the appellant-plaintiff when the subsequent interference 3 is caused in his possession after passing of decree of injunction in favour of defendant in another suit?” Mr. Ashok Sood, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. Mr. Ajay Kumar, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The plaintiff has appeared as PW-1. He has deposed that he is residing in set No.2 and defendant is residing in set No.1. The property was purchased by the plaintiff and defendant from one Sh. E. Gedian. He has brought on record copy of sale deed Ex.PW-1/A, copy of tatima Ex.PW-1/B and copy of mutation Ex.PW-1/C. According to him, the demarcation was conducted by the Kanungo on 19.5.1987. He has further deposed that after the confirmation of the stay, the defendant removed his tank and placed her own tank on the land. He then stated that the defendant has forcibly encroached upon his land. He has further deposed that the stay in the previous suit was confirmed by the learned Sub Judge on 18.5.1989. He has admitted that Ex.D-4 is the copy of judgment of the learned Sub Judge (1) Shimla. PW-2 Jasminder Singh is the Registration Clerk. He has brought on record sale deed and site plan Ex.PW-1/A. PW-3 is Prem Singh Field Kanungo. He has testified that he could not produce the requisitioned record as the same was destroyed by the General Record Room. 4 The defendant has deposed that she is residing in set No.1 since 1983. She has purchased the property vide sale deed Ex.DW-1/A. She has also brought on record site plan Ex.DW-1/D. She testified that there is no vacant land adjoining to her plot. She has installed water tank in her own land. She has denied that she removed the water tank of the plaintiff. She has denied that the demarcation was conducted in her presence. The learned counsel appearing on behalf of the plaintiff has conceded before the trial court that a decree for demarcation of the suit land was not prayed for and only injunction for restraining the defendant from interfering over the suit property was prayed for. In fact, the plaintiff has also abandoned this relief since no ground qua demarcation of suit was taken in the memorandum of appeal filed before the first appellate court. Since the plaintiff himself has abandoned the relief of demarcation, the same has rightly been ignored by the first appellate court. Primarily, before both the courts below, the plaintiff has restricted his claim qua the decree of injunction to restrain the defendant from causing any interference over the suit land. The plaintiff has placed strong reliance on demarcation report Ex.PX dated 20.8.1987. A bare perusal of the demarcation report shows that it no where pin points that the defendant has made any encroachment over any portion of the suit land. The original report could not be brought on record. PW-3 has deposed that the same was destroyed on 30.6.1989. However, the fact of the matter is that the plaintiff has examined PW-3. Strangely, Ex. PX was never put to him. Ex.PX has not been proved in accordance with law. It has also not been proved by the plaintiff that the demarcation was carried in the presence of defendant. The plaintiff was restrained from interfering on the land belonging to the defendant vide judgment and decree Ex.D-4. The defendant has proved that the water tank was installed by her on her 5 own land. The plaintiff has failed to prove encroachment over the suit land. The defendant had filed a suit for permanent prohibitory injunction on 22.8.1987. An exparte decree was passed by the court. The plaintiff had not filed any appeal for setting aside the judgment and decree of that suit. It had attained finality. No new cause of action had arisen in favour of the plaintiff as argued by Mr. Ashok Sood, Advocate. The civil suit apparently has been filed to over reach the judgment and decree i.e. Ex.D-4. The parties cannot be permitted to litigate on the same issues time and again. Cumulatively, on the basis of the observations made hereinabove it is held that since the plaintiff has himself abandoned the relief of demarcation, he cannot be granted any relief qua the same. No new cause of action had arisen to the plaintiff after the decree of injunction was passed in favour of the defendant. The plaintiff has failed to prove that the defendant had encroached upon his land. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 5.6.2009 (Rajiv Sharma ), J. *awasthi*