IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 152 of 1997 Date of decision:22.5.2008 ______________________________________________________ Om Parkash Taneja Appellant Versus Narender Kumar Sharma & Anr. Respondents Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. G.D. Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. For the respondents: Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate, for respondent No. 1. V.K.Ahuja, J. (Oral): This is a Regular Second Appeal filed by the appellant under Section 100 CPC against the judgment and decree of the Court of learned District Judge, Shimla, dated 31.5.1997, vide which he set aside the judgment and decree passed by the learned Sub Judge Ist Class, Court No. 4, Shimla, dated 22.11.1994, decreeing the suit of the appellant for permanent injunction. Briefly stated the facts of the case are that the appellant as plaintiff filed a suit for permanent injunction as well as mandatory injunction as against the respondents who were impleaded as Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 defendants No. 1 and 2. It was alleged by the plaintiff that he was owner of the land bearing Khasra No. 763/121/A/4/1/4 and the plaintiff has constructed four storeyed on the said plot. Adjoining to this plot, defendant No. 2 owned plot bearing No.6 in which there was a common passage for both the parties on the spot. It was alleged that while raising the construction, defendant No. 2 has encroached upon the common passage to the extent of one meter and defendant No. 1 was in the process of completing the construction of second storey. Since the defendants are threatening to encroach upon the said common passage and have partly encroached upon the path. Hence, the suit for permanent injunction as well as mandatory injunction filed by the plaintiff. Defendants admitted that both the parties owned their respective plots and there was a common passage which was left as an approach to the plots by the parties. It was denied that the defendants are threatening to encroach upon the part of the said passage and rather it was pleaded that the plaintiff had encroached upon the common passage partly and, therefore, a decree for mandatory injunction be passed as against the plaintiff directing him to remove the entire construction over the common passage. The suit was tried by the learned trial Court, which held that the plaintiff was only entitled to the relief of permanent injunction and accordingly, the suit for permanent injunction was decreed. However, the counter claim filed by the defendants for the relief of mandatory injunction as against the plaintiff was also dismissed. An appeal was preferred by the defendants against the declining of 3 the relief of mandatory injunction and the learned first Appellate Court accepted the appeal and dismissed the suit of the plaintiff for permanent injunction also. The present appeal was admitted by this Court on substantial question of law, namely, whether the identity of the common passage was proved on record on the basis of Ext. PW1/B Map as well as photographs Ext. PW2/A showing the common passage at Points A,B,C and D and Tatima Ext. PW4/A. Another substantial question of law formulated was as to whether the common passage was proved as shown in Ext. PW4/B and these documents have been wrongly ignored by the learned District Judge and as to whether the appellant had proved his claim for decree of injunction. On a perusal of the judgment passed by the learned first Appellate Court, it is clear that the learned trial Court had observed that an application for additional evidence was filed by the defendants to prove the report of the demarcation given by one Shri B.R. Lakhanpal and the said application was rejected by the Court in view of the fact that said report of demarcation was not produced alongwith the application for additional evidence and, therefore, the learned first Appellate Court observed that it shows that no such demarcation is in existence and there is no question of evidence by way of additional evidence once report of demarcation was not attached with the application. Order passed by the learned first Appellate Court can be said to be correct insofar as the identity of the land is concerned. The learned trial Court took identity of the land from photographs Ext. PW2/A and 4 observed that the passage is shown by letters A,B,C and D, but there were no A,B,C and D in the photographs and only Points B and C was marked. The photographs cannot be taken into consideration as evidence qua encroachment since there are no demarcations of the distance given in the photographs and it cannot be of any help to consider the extent of encroachment by the defendants, if any. The learned trial Court mainly relied upon the photographs and granted the decree of injunction which findings were reversed by the learned first Appellate Court and rightly so since in case there was any encroachment made by the defendants, it was for the plaintiff to have taken some revenue expert to the spot and proved his report which was never done. Learned counsel for the appellant had relied upon a decision of this Court in Bali Ram Vs. Mela Ram and another, 2002(3) Shim. L.C. 131, and submitted that in case the Court observed that in case the identity of the suit land was to be ascertained. However, it does not lead to the inference that in case the plaintiff failed to prove any such demarcation report which was necessary, it is the duty of the Court to appoint a Local Commissioner. The Local Commissioner can be appointed to clear the ambiguity, if any and these powers are to be exercised sparingly. Once the plaintiff failed to examine some expert and proved the extent of encroachment, if any, he cannot take the assistance of these provisions by submitting that it is the duty of the Court to appoint a Local Commissioner. The case has to be proved by the plaintiff himself. It is in the evidence of DW-2 that they are using the path and there was no question for them to stop the path. The evidence 5 shows that the path is to be used as a passage to their house. Accordingly, the findings of the learned first Appellate Court declining the relief of permanent injunction in favour of the plaintiff calls for no interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Parties are left to bear their own costs. CMP No. 328 of 1997: In view of the dismissal of the main appeal, this application also stands dismissed and the stay order granted on 2.1.1998 stands vacated. May 22, 2008 ( V.K. Ahuja ) (BSS) 6