IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 114 of 2000. Date of decision: 30.3.2010. Mohinder Kumar ….. Appellant. Vs. Padam Sood & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. S.R.Sharma, Advocate. For the Respondents : Mr. Ashwani K. Sharma, Advocate, for respondent No. 1. Kuldip Singh, Judge (Oral). The plaintiff has come in appeal against the judgement, decree dated 24.8.1999 passed by learned Additional District Judge, Shimla in Civil Appeal No. 45-S/13 of 1994 affirming the judgement, decree dated 31.3.1994 passed by learned Sub Judge Ist Class (3), Shimla. 2. The facts in brief are that appellant had filed a suit for declaration, permanent prohibitory injunction and mandatory injunction on the grounds that he and proforma respondent No. 4 are owners of suit plot comprised in khasra No. 521/2, Station Ward Bara Shimla measuring 216 sq. yards 2 square feet which was purchased vide sale deed dated 29.8.1974. It has been alleged that adjacent to suit plot there is a plot of respondent No. 1 on which he has started excavation work for construction of a house. The respondent No. 1 Whether the reporters of the local papers may be allowed to see the Judgment? …2… has constructed a wall in the shape of retaining wall and major portion of the wall has been constructed on the land of appellant and proforma respondent No. 4 measuring about 24’ x 1’ and 24’ x 3’ with height varying from 6’ to 8 ‘. The respondent No. 1 as such has encroached upon the land of appellant by 24’ x 1’ and 24’ x 3’. The respondent No. 1 intends to raise further construction without adhering to the regulations of interim development plan for Shimla area and without leaving set-back of one meter. The plan of respondent No. 1 has been approved by respondents No. 2 and 3 against the provisions of Town and Country Planning Act and bye- laws and sanction is null and void. 3. The plot of respondent No. 1 is less than 150 square meters. The appellant has prayed mandatory injunction for removal of aforesaid retaining wall, prohibitory injunction restraining the respondents from interfering in the possession or encroaching upon the land of appellant and not to raise any construction within one meter from the boundary of appellant. The declaration was sought for declaring plan sanctioned and approved by respondents No. 2 and 3 is not in accordance with the Act and bye-laws and sanction be ordered to be cancelled. 4. The respondent No. 1 has contested the suit and raised preliminary objections of estoppel, non-joinder, cause of action, maintainability , verification, delay and laches, concealment of facts. On merits, it was pleaded that respondent No. 1 was raising construction on his property for the last more than one year. In November 1986 appellant requested respondent No. 1 for providing a …3… stay wall towards the property so that the property is not damaged. The appellant sought another stay wall on the other side of his plot which he alleged that he got it raised after requesting the P.W.D. authorities. The respondent No. 1 after spending huge amount raised the stay wall towards the property of appellant. The respondent No. 1 has no objection for removing the stay wall provided the appellant makes proper arrangements to stop the falling of debris towards the property of respondent No.1. It has been alleged that respondent No. 1 has made no encroachment over the property of appellant. It has been pleaded that appellant is estopped from claiming to remove the stay wall as the construction of respondent No. 1 was still in progress. The sanction granted to respondent No. 1 is legal. 5. The defence of respondent No. 2 was closed. The respondent No. 3 has stated that respondent No. 1 had not raised construction in accordance with the plan. The proceedings on the basis of notice under Section 39 of the H.P.Town and Country Planning Act had been initiated against him. The trial court had appointed Local Commissioner, who submitted his report. The suit was dismissed on 31.3.1994. The decision dated 31.3.1994 has been affirmed by the learned Addl. District Judge on 24.8.1999, hence the matter has now come in second appeal, which has been admitted on the following substantial question of law:- Whether the Court below is justified in setting aside the report of the Local Commissioner C-1 and C-2 despite the admission with respect to encroachment by the respondent No.1 representative and actual encroachment recorded therein by the Local Commissioner. …4… 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellant that Shamsher Chand representative of respondent No. 1 Padam Chand admitted at the time of demarcation conducted by Local Commissioner that his brother has encroached the land of appellant. It has been submitted that in these circumstances, the courts below were not justified in setting aside the report of Local Commissioner Ex. C-1 and Ex. C-2. On the contrary, the learned counsel for the respondent has submitted that Shamsher Chand was not authorized representative of respondent No. 1 to represent him at the time of demarcation. 7. CW 1 Khem Dass Local Commissioner has proved report Ex. C-1. He has also placed on record tatima Ex. C-2 accompanied with the report. He has not stated that tatima Ex. C-2 was prepared by him. The learned counsel for the appellant has fairly submitted that authorization in favour of Shamsher Chand by respondent No. 1 has not come on record but he has submitted that Shamsher Chand is the brother of respondent No.1 and Shamsher Chand had represented respondent No. 1 at the time of demarcation. Simply because Shamsher Chand is the brother of respondent No.1, it cannot be assumed that he represented respondent No. 1 at the time of demarcation unless authorization of respondent No. 1 in favour of Shamsher Chand is proved. There is nothing on record to show that Shamsher Chand at the time of demarcation was the authorized representative of respondent No.1 and therefore, any alleged statement made by him before Local Commissioner cannot …5… bind respondent No.1. In addition, the demarcation was allegedly conducted on 22.5.1989. The alleged statement of Shamsher Chand accompanied with report Ex. C-1 was recorded on 25.5.1989, whereas the statements of other persons were recorded on 22.5.1989. There is no explanation how the statement of Shamsher Chand was recorded on 25.5.1989. It is not the case of appellant that Local Commissioner visited the spot on 25.5.1989 again and the statement of Shamsher Chand was recorded on 25.5.1989. This creates suspicion regarding the alleged statement of Shamsher Chand and relied by the appellant. 8. The demarcation report is accompanied with copy of musabi on which alleged encroachment made by respondent No. 1 and detected during demarcation has been identified. The Local Commissioner in his statement has stated that tatima prepared on the spot is Ex. C-2, but mark of Ex. C-2 has been put on statements of Mohinder Kumar and Shamsher Chand. It appears it has been done inadvertently. The copy of musabi showing alleged encroachment should have been put mark Ex. C-2, but this does not in any way affect the ultimate conclusion. The Local Commissioner has not stated that copy of musabi on which alleged encroachment was shown was prepared by him. There is nothing on record to show who prepared the tatima on the copy of musabi showing encroachment allegedly found at the time of demarcation. This being the position, the copy of musabi showing alleged encroachment has not been proved. In other words, the alleged encroachment made by respondent No. 1 over the land of appellant has not been proved. …6… 9. The Local Commissioner has stated that notice of demarcation was given to respondent No.1, whereas it is the case of respondent No. 1 that no such notice was served on him. In normal course, the record of service of notice must be with the local commissioner, therefore, it was for him to prove that before demarcation respondent No. 1 was served. It has been held in Gopal Krishanaji Ketkar vs. Mohammed Haji Latif and others AIR 1968 SC 1413 that even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It has also been held that it is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could through light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. 10. The appellant is relying on the statement of local commissioner that notice was served on respondent No.1, which has been denied by respondent No.1. It is reasonable to infer that when local commissioner has stated that notice was served on respondent No.1 then local commissioner must be having some document in support of his statement, but no such document has been placed on record. In these circumstances, an adverse inference is to be drawn to the effect that respondent No. 1 was not served by the local commissioner before visiting the site. Thus taken from any angle, the report of the local commissioner Ex. C-1 and Ex. C-2 cannot be relied for returning the finding that respondent No. 1 has encroached …7… upon the land of appellant. The two courts below have recorded a finding of fact against the appellant. The learned Addl. District Judge has rightly appreciated the material on record. It has not been established that the learned Addl. District Judge has taken into account inadmissible evidence or ignored material evidence. The substantial question of law is decided against the appellant. There is no merit in the appeal which is liable to be dismissed. 11. No other point was urged. 12. The result of above discussion, the appeal fails and is accordingly dismissed. No costs. March 30, 2010. ( Kuldip Singh ), (Hem) Judge.