IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 493 of 1998. Decided on May 25, 2010. Sh. Mangloo (deceased), represented by his LRs Sh. Jawahar Lal & others ..Appellants. Versus Sh. Jehroo (deceased), represented by his LRs Sh. Mast Ram & others ..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant Mr. Romesh Verma, Advocate. For the respondents Mr. K.D.Sood, Advocate, with Mr. Sanjeev Sood, Advocate. Surjit Singh, Judge (Oral). This Regular Second Appeal by the plaintiff, was admitted on the following substantial questions of law: “Whether the Civil Court is debarred from exercising its discretionary jurisdiction in terms of Order 26 Rule 9 CPC in the absence of an application or prayer for additional evidence at the appellate stage under Order 41 Rule 27 thereof?” 2. Facts that need to be noticed for the decision of the appeal may be stated. Plaintiff filed a suit for Whether reporters of the local papers may be allowed to see the judgment? - 2 - issuance of permanent prohibitory injunction, restraining the respondent-defendant, Jheroo, from interfering in his possession over land, bearing Khasra No. 398/108 and also for possession of any such portion of the said land, which the respondent-defendant might encroach upon after the institution of the suit. It was pleaded that land bearing Khasra No. 398/108, belonging to the plaintiff, is situated adjacent to the land of the defendant, bearing Khasra No. 107. It was further stated that level of plaintiff’s land was higher than that of the defendant. Further, it was stated that settlement had taken place in the village and during the course of that settlement, defendant, in connivance with the staff of settlement people, had got revenue entries manipulated, and on the strength of those manipulated entries, he was threatening to dispossess the plaintiff from the suit land. 3. Defendant contested the suit. He denied that he had been threatening to make any encroachment upon the plaintiff’s land. He stated that he was in possession of his own land. 4. Trial Court concluded that evidence on record did not substantiate the plaintiff’s plea that the defendant-respondent was threatening to interfere with his possession and consequently, dismissed the suit. - 3 - 5. An appeal was filed by the plaintiff in the Court of learned District Judge. Plaintiff filed an application also under Order 26 Rule 9 CPC in the Court of District Judge for appointment of local commissioner for fixing boundary of the properties of the parties. District Judge dismissed that application, and also the appeal, on merits. 6. I have heard the counsel for the parties and gone through the record. 7. It is true that learned District Judge, while dismissing application under Order 26 Rule 9 CPC, has observed that making of such an application, would not serve any purpose, unless another application for leading additional evidence is also made and this may not be the correct position of law, but this is not the sole ground for dismissing the application under Order 26 Rule 9 CPC. 8. As a matter of fact, settlement has taken place in the area and the holdings of the parties have been assigned new numbers. Plaintiff’s land has been assigned new Khasra No. 333 and its area is 0.53.06 hectares, which, when converted into bighas, comes to 7 bighas. The area of old Khasra No. 398/108 of the plaintiff was 7.1 bighas. Thus, there is decrease of just one biswa, which is negligible. It is not the case of the plaintiff-appellant that encroachment has been made by - 4 - respondent – defendant on his land, now described by Khasra No. 333 in the new record. The area as already demonstrated, of new Khasra No. 333, is almost equivalent to the area of old Khasra No. 398/108. 9. While leading oral evidence, plaintiff tried to show that there was dispute with respect to 17 biswas area, which according to him, defendant was intending to encroach, or had encroached. Such a plea having not been raised in the plaint, evidence cannot be looked into. Defendant’s plea, from the very beginning, had been that he was confining his possession to the land owned by him and neither he had made any encroachment, nor did he intend to do so. Plaintiff did not plead that he had got his land demarcated and any encroachment had been found. Holdings of the parties have separate Khasra numbers. Of course, two numbers are adjacent to each other, but their boundary is ascertainable with the help of Jamabandi and Musabi. 10. In view of the above discussion, especially the fact that the suit of the plaintiff was for injunction, I do not think there was any need for appointment of local commissioner, particularly when the defendant, very categorically pleaded and also testified while appearing as his own witness, that neither he made any encroachment, nor did he intend to do so. - 5 - 11. Keeping in view the above stated position, substantial question of law is answered against the appellant and consequently, appeal is dismissed. May 25, 2010 (PC). (Surjit Singh), J.