IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 538 of 2000 Decided on : 22.10.2010 Chuni Lal …Appellant. Versus Subhash Chand and another …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants: Mr. R.K. Gautam, senior Advocate with Mr. Vikrant Chandel, Advocate. For the respondents: Mr. Balwant Singh vice Mr. K. D. Sood, Advocate. Kuldip Singh , Judge (Oral) This appeal has been directed against the judgment and decree, dated 1.9.2000 passed by learned Addl. District Judge (I), Kangra at Dharamshala in Civil Appeal No. 31-K/1997 affirming judgment and decree, dated 5.5.1997, passed by learned Sub Judge 1st Class (I), Kangra in Civil Suit No. 356/1991. 2. The appellant was plaintiff and he had filed a suit with respect to land more specifically described in the plaint. It is the case of the plaintiff that he is owner in possession of the suit land as co-sharer. He has raised plinth by cutting some plants on the suit land about a year 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 back. The respondents have nothing to do with the suit land and have no right to interfere in the ownership and possession of the appellant. The respondents have threatened to remove the plinth and dig a water channel (challa) to cause damage to the property of the appellant. In these circumstances, the suit was filed for declaration and permanent prohibitory injunction. 3. The respondents have contested the suit by filing written statement and have taken preliminary objections of maintainability, lack of cause of action, locus-standi, non-joinder of necessary parties and also that the suit is not maintainable on account of acts and conduct of the appellant. On merits, the respondents have pleaded that there is only a ‘challa’ on northern and eastern side of Khasra No. 815, which emanates from Kandrehar kuhal and after passing and irrigating Khasra Nos. 814 and 813 irrigates the fields of the respondents in Khasra No. 810, which is being used by them as customary right of easement. The respondents have also pleaded easement by way of prescription and necessity. The respondents have no other source of irrigation for irrigating their land comprised in Khasra No. 810. It has been pleaded that ‘challa’ is in existence from the time of predecessor-in-interest of the respondents. The existence of ‘challa’ has been admitted by the appellant in his statement, dated 21.12.1991. He agreed that he will not stop flow of water by his proposed construction. 4. The replication was filed by the appellant, wherein he reiterated the stand taken by him in the plaint while controverting the 3 defence putforward by the respondents. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP. 3. Whether the suit is not legally and factually maintainable, as alleged? OPD. 4. Whether the plaintiff has no cause of action and locus standi to sue? OPD. 5. Whether the defendants have been using and taking water from the challa in question since 30 years from the time of their predecessor-in-interest, as alleged ? OPD. 6. Whether the act, conduct and silence of the plaintiff is a bar to the present suit? OPD. 7. Whether the suit is bad for non-joinder of necessary parties? OPD. 8. Whether the suit is bad for mis-joinder of cause of action? OPD. 9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD. 10. Relief. 5. The issues No. 1, 3, 4, 5 and 6 were answered in affirmative and issues No.2, 7, 8 and 9 were answered in negative and the suit was dismissed on 5.5.1997. In appeal, the learned Additional District Judge on 1.9.2000 has affirmed the judgment and decree, dated 5.5.1997. Hence, the second appeal, which has been admitted on following substantial questions of law:- 1. Whether the courts below have wrongly relied upon the inadmissible evidence specially Ex. DW-3/B, Ex. DW-1/A and Ex. DW-3/A? 4 2. Whether the courts below have failed to appreciate that the demarcation report could not have been relied upon as the same was not as per mandatory instructions issued by the Financial Commissioner, H.P.? 6. I have heard learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that two courts below have relied inadmissible evidence such as Ext. DW3/B, Ext. DW1/A and Ext. DW3/A. It has been submitted that the demarcation report could not have been relied upon as the demarcation was not conducted in accordance with instructions of Financial Commissioner. The learned counsel for the appellants has prayed for setting aside the impugned judgment and decree. The learned counsel for the respondents has supported the impugned judgment and decree and has submitted that no fault can be found with the impugned judgment and decree. The two courts below have concurrently held in favour of the respondents. No question of law much less substantial question of law is involved in the appeal. 7. Both the substantial questions of law, referred to above, are taken up collectively for disposal. Ext. DW3/B is the demarcation report. Ext. DW1/A is the statement of Subhash Chand and Ext. DW3/A is the statement of Chuni Lal, which they have given at the time of demarcation. It has not been pointed out on what ground the statements, Ext. DW1/A and Ext. DW3/A are inadmissible in evidence. Ext. DW3/B has been proved by DW3, who carried out the demarcation. DW3, Satpal has stated that he had given demarcation 5 report, Ext. DW3/B. He has stated that his report was confirmed on 13.12.1991. A suggestion has been given to him in cross-examination that he has not prepared the report as per spot. The appellant while cross-examining DW3 has not taken the stand that the demarcation was not conducted in accordance with instructions of Financial Commissioner. It is also not the case of the appellant during cross- examination of DW3 that permanent points were not fixed at the time of demarcation. On the contrary, the appellant in his statement Ext. DW3/A at the time of demarcation has stated that he is satisfied with the demarcation. The learned Additional District Judge has considered the demarcation report, Ext. DW3/B in detail in the impugned judgment, so also Sub Judge in judgment, dated 5.5.1997. The appellant has failed to make out a case that the demarcation was not conducted by DW3 on the spot in accordance with rules. The two courts below have concurrently decided the matter against the appellant. There is no merit in the appeal. The above substantial questions of law are answered against the appellant. 8. No other point has been urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. October 22, 2010. (pankaj)