IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 520 of 2007. Reserved on : 25.2.2010. Decided on: 4.3.2010. __________________________________________________ Shri Ravinder Singh and another. … Appellants. Versus Shri Rai Singh … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Ms. Vidushi Sharma, Advocate. For the Respondent : Mr. Ajay Sharma, Advocate. ___________________________________________________________ V.K. Sharma, Judge. The present appeal arises out of judgment and decree dated 29.5.2007 of the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala (H.P.) in Civil Appeal No. 37-D/05/03, titled Shri Rai Singh Versus Ravinder Singh and another reversing the judgment and decree dated 30.5.2003 passed by the learned Sub Judge Ist Class (I), Dehra, District Kangra (H.P.) in Civil Suit No. 13 of 1998, titled Rai Singh Versus Ravinder Singh and another, whereby suit for grant of a decree of perpetual prohibitory injunction and in the alternative for possession filed by respondent, Shri Rai Singh, as plaintiff against the appellants being the defendants, was dismissed by the learned trial 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Court, has been decreed for substantive relief of perpetual prohibitory injunction as also for possession in respect of a part of the land in dispute. The dispute between the parties concerns the land bearing Khata No. 8, Khatauni No. 15, Khasra No. 1018, measuring 0-46-13 hectares vide Jamabandi for the year 1993-94, situate in Mohal Bhatehad, Mauza Dhanged, Tehsil Dehra, District Kangra (H.P.), which shall hereinafter be referred to as the suit land. For the sake of convenience, parties shall also be referred to hereinafter by their status as it was before the learned trial Court, i.e. plaintiff and defendants, respectively. The case set up by the plaintiff is that he along with his brother is recorded as owner in possession of the suit land. The adjoining land bearing Khasra No. 1017 is owned by defendant No.1. In between these two lands, there are various types of trees having considerable commercial value. The defendants are disputing the existence of North-Western ‘Maind’ and thus, there is boundary dispute between the parties. It is further averred that the defendants under the garb of being owners of the adjoining field have cut four ‘Kamal’ trees from the suit land. They are further threatening to cut more trees from the suit land and to encroach upon the same. Initially, the suit was filed for grant of perpetual prohibitory injunction simplicitor. It was during pendency of the suit before the learned trial Court that the plaint was amended to include alternative relief of possession on the averments that during pendency of the suit on 17.11.2001, defendants have encroached upon a portion of the suit land denoted by Khasra No. 1018/1, 3 measuring 0-00-90 hectares. Thus, an alternative prayer for restoration of possession of this part of the suit was also included in the plaint as prayer ‘B’. The suit was contested by the defendants on preliminary objections regarding maintainability, locus standi, mis- joinder (wrongly mentioned as non-joinder of defendant No.2), cause of action and being false and frivolous besides claiming special costs. On merit, it was categorically admitted that the suit land is owned and possessed by the plaintiff. However, it was asserted that defendant No.1 being owner of the adjoining land bearing Khasra No. 1017 is ‘Banadar’. However, it was denied that the trees are located in the suit land and instead the same are in Khasra No. 1017 and are thus, exclusively owned and possessed by defendant No.1 and the plaintiff has no concern whatsoever with the same. The ‘Maind’ also belongs to defendant No.1. It was further averred that stones were fixed in between suit land and the land belonging to defendant No.1 at the time of settlement. So there is no boundary dispute, as alleged. It was further averred that a part of the land bearing Khasra No. 1017 belonging to defendant No.1 is ‘Kharetar’ (pasture) and the remainder is ‘Barani’, which is under cultivation. Whereas the land under cultivation is protected by fence, the pasture is kept open. The trees are located in this part of Khasra No. 1017. It is the plaintiff, who with a view to grab these trees has started interference with the land belonging to defendant No.1. It is denied that the defendants ever cut any tree from the suit land or intended to do so or to encroach upon suit land. The defendants have also denied that they have encroached upon a part of the suit land denoted by Khasra No. 1018/1, 4 measuring 0-00-90 hectares during pendency of the suit. According to them, this part of the land belongs to them and they are in possession thereof since the time of their forefathers. It was alternatively pleaded that even if this part of the land is found in the ownership of the plaintiff, then in that case, they have acquired title to the same by adverse possession, as their possession over the same dates back for the last hundred years and the plaintiff is not entitled for possession thereof. On the above pleadings, the following issues were settled by the learned trial Court: 1. Whether the plaintiff is entitled for the relief of injunction? OPP. 1A. Whether defendants have encroached upon the suit land and the plaintiff is entitled for relief of possession? OPP. 1B. If issue No. 1A is proved whether the defendants have become owners of the suit land by way of their adverse possession? OPD. 2. Whether the suit is not maintainable? OPD. 3. Whether the suit is bad for mis-joinder of defendant No.2? OPD. 4. Relief. After the parties led evidence and were heard by the learned trial Court, the suit was dismissed. Whereas Issues No. 1, 1A and 1B were held in negative, issue No.2 was decided in affirmative and issue No.3 was disposed of as not pressed. The suit came to be dismissed on these findings. Being aggrieved by and dis-satisfied with, plaintiff carried the matter in appeal before the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, who, as already 5 noticed, accepted the appeal and decreed the suit, both for the substantive and alternative reliefs of perpetual prohibitory injunction and in the alternative for possession in respect of a part of the suit land denoted by Khasra No. 1018/1, measuring 0-00-90 hectares. The defendants, who are aggrieved by the judgment of reversal passed by the learned First Appellate Court, are in appeal before this Court by way of present Regular Second Appeal. I have heard Ms. Vidushi Sharma, learned counsel for the appellants (defendants), Mr. Ajay Sharma, learned counsel for the respondent (plaintiff) and gone through the record. The appeal has been admitted on the following substantial question of law: “Whether the Local Commissioner’s report is not liable to be set aside on the short ground that it was prepared on the basis of Musabi, which was not procured from the revenue record or from the Court and nor the same was shown to the defendants?” While directing challenge against the impugned judgment and decree dated 29.05.2007 of the learned First Appellate Court, the defendants have re-iterated almost all the averments set up before this Court by way of grounds of appeal. Conversely, the plaintiff has supported the judgment and decree under challenge. The plaintiff was non-suited by the learned trial Court mainly on the ground that the report of the Local Commissioner (Ext. P-4) was not in accordance with the instructions issued by the Financial Commissioner inasmuch as neither he had recorded statements of the parties nor had fixed ‘Pucca’ points. However, 6 findings to this effect are contrary to the evidence on record. CW-1 Shri Pyare Lal, Kanungo was appointed as Local Commissioner by the learned trial Court to demarcate respective lands belonging to the parties and to submit report as to whether any one of them has encroached upon each others’ land and if so, to what extent? Before carrying out demarcation, the Local Commissioner had duly recorded statements of plaintiff-Rai Singh and defendant No.1- Ravinder Singh, which are Ext. CW-1/A and CW-1/B. Both of them had stated that they are not in the know of ‘Pukhta Bana’ (permanent points) and that the Local Commissioner may himself ascertain the same. It was, thereafter, that the Local Commissioner carried out demarcation vide report Ext. P-4, which is quite detailed and exhaustive. A combined and harmonious reading of the same would go to show that apart from fixing permanent points, the Local Commissioner had also carried out demarcation after cross- checking correctness thereof by drawing perpendiculars as is apparent from ‘Musabi’ (Ext. P-3). On conclusion of the demarcation, the Local Commissioner had again recorded statements of plaintiff and defendant No.1, when the former accepted demarcation as correct, but the latter dis-agreed with the same and stated that he did not want to vacate that portion of the suit land, which was found in possession of the defendants. The Local Commissioner has been examined as CW-1. The learned counsel for the defendants has drawn my attention to a passing reference made by the Local Commissioner during cross- examination that while demarcating the suit land, he had perused another ‘Musabi’, which he had, thereafter, returned to the plaintiff. However, the fact remains that the Local Commissioner has 7 categorically stated that the demarcation was carried out by him on the basis of ‘Musabi’ (Ext. P-3), which was made available to him by the Court. In such circumstances, no fault can be found with the report of the Local Commissioner for the reason that apart from ‘Musabi’ supplied to him by the Court, he had also consulted another ‘Musabi’ supplied by the plaintiff, which after perusal was returned by him to the plaintiff. However, the fact remains that the proceedings connected with the demarcation were carried out by the Local Commissioner on the basis of ‘Musabi’ made available to him by the Court. The above discussion brings me to hold that the report of the Local Commissioner (Ext. P-4) is not liable to be set aside for the reason that apart from ‘Musabi’ (Ext. P-3) supplied to him by the Court for the purpose of carrying out demarcation of the suit land, another ‘Musabi’ was produced before him by the plaintiff, which after perusal and cross-checking, he had returned to him. In view of the above, the appeal fails and is dismissed, but with no order as to costs. The appeal stands disposed of in the above terms. (V.K. Sharma), J. March 4, 2010. (cr)