IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 354/1998 Decided on:24.12.2008 Sikander Kaur and others. …Appellants. Versus Ram Rakha. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. no For the Appellants : Mr. P.C. Sharma, Advocate. For the Respondents : Mr. Romesh Verma, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 22.5.1998 passed by the learned District Judge, Solan in Civil Appeal No. 21-NL/ 13 of 1996. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the present appellants Sh. Mela Ram alias Ashok Kumar filed a suit alleging therein that he had obtained the demarcation of the suit land and found that the respondent- defendant (hereinafter referred to as ‘the defendant’ for convenience sake) has encroached upon the land measuring 1 biswa 8 biswansis of the suit land. Hence, the suit for possession with consequential relief of injunction 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 was filed. The suit was contested by the defendant. The trial court dismissed the suit on 22.2.1996. The plaintiff preferred an appeal against the judgment and decree dated 22.2.1996 before the learned District Judge, Solan. The learned District Judge vide judgment and decree dated 22.5.1998 dismissed the appeal. It appears That Sh. Mela Ram plaintiff died during the pendency of the appeal before the learned District Judge and his legal representatives were brought on record. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the impugned judgment and decree is justified when after the courts have found encroachment being done by the defendant have denied the decree of possession? 2. Whether the courts below have failed to appreciate the statement of PW-3, report ext. DW-3 Local Commissioner in his report Ext. DW-3/A and Tatima Ext. DW-3/B? 3. Whether the lower appellate court has wrongly rejected the application under order 41 Rule 27 moved by the appellant for recalling Local Commissioner, the technical witness for clarification of his report? Mr. P.C. Sharma, Advocate has strenuously argued that both the courts below have misconstrued the demarcation report furnished by the Tehsildar, Nalagarh Ex.DW-3/A and Tatima Ex.DW-3/B. He further contended that his clients had established the encroachment made by the defendant and he was liable to be evicted. Mr. Romesh Verma, Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. 3 Since all 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. PW-1 Sh. Mela Ram had got the Local Commissioner appointed to give the demarcation of the land. DW-3 Sh. Sunder Singh Chauhan, Tehsildar visited the spot on 20.11.1991 and tendered the report on 25.11.1992 i.e. Ex.DW-3/A. The report Ex.DW-3/A is silent about the length of the land under encroachment and the total area of this encroachment. The Local Commissioner has not marked even in the tatima Ex.DW-3/B the area under encroachment. The report is vague and could not be relied upon. It was necessary for the plaintiff to prove how much area of the suit land has been encroached by the defendant. It has also come on record that after the consolidation operation, the defendant has got the area demarcated and thereafter he has constructed the house on khasra No.6 and part of it came in khasra No. 19. According to the defendant, this has happened due to difference in Musabi and Latha. The width of this Khasra number was mentioned 7 Karm in the Latha whereas in Musabi it was mentioned 5 Karm. The plaintiffs have failed to prove their case by leading tangible evidence. Both the courts below have correctly appreciated the ocular as well as documentary evidence. The report Ex.DW-3/A and Ex.DW-3/B being vague have rightly been discarded by both the courts below. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 24.12.2008 (Rajiv Sharma ), J. *awasthi*