IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.338 of 1998 Date of decision : March 16, 2010 Surjit Singh …Appellant. Versus Harminder Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate. Surjit Singh, J (Oral) Present Regular Second Appeal was admitted on the following substantial question of law, vide order dated 30th September, 1999: “Whether the courts below are right in not taking into consideration the statements made by the parties dated 8th October, 1993, and the spot inspection made by the learned Presiding Officer on 9th October, 1993?” 2. Facts relevant for the disposal of the appeal or say for answering the aforesaid substantial question of law may be noticed. Suit was filed by late Shri Sant Singh, the predecessor-in-interest of the plaintiffs-respondents, for issuance of permanent prohibitory injunction restraining the appellant-defendant from making any encroachment upon his land, measuring 3 marlas bearing Khasra No.4464/ 2903/1, particularly its portion depicted by letters A,B,C,D, Whether reporters of the local papers may be allowed to see the judgment? …2… E,F,G & H in the plan filed with the plaint. Mandatory injunction was also sought directing the defendant to remove the projections extended over the common passage lying ahead of the aforesaid land of the plaintiffs- respondents, towards southern side. 3. Defendant contested the suit. He took the plea that he had no intention to make any encroachment upon any portion of the land of the plaintiffs and that the projection complained of had been extended about 20 years back and, hence, the defendants had acquired right to retain and continue with the said projection. 4. It appears that during the course of the trial, the parties started negotiating an amicable settlement. On 8th October, 1993, they appeared before the trial Judge and made statements giving the outlines of the proposed compromise. Matter was adjourned to 11th October, 1993 by the trial Judge, for effecting compromise between the parties. On that date, the parties appeared and the talk for amicable settlement/compromise failed. This is what is recorded in the zimini order of that date. Thereafter, the matter was decided on merits by the Civil Court. The suit was decreed. Defendant-appellant filed appeal against the judgment and decree of the trial Court. Learned District Judge, who heard the appeal, dismissed the same, with slight modification. …3… 5. Only submission, which has been made and rightly so, because the appeal has been admitted only on one substantial question of law to which the submission pertains, is that when there had been a compromise between the parties, per their statements recorded on 8th October, 1993, in the Court, the matter ought to have been decided, in terms of those statements of the parties. Submission is without merit. As already noticed, the parties failed to compromise the matter, after making the aforesaid statements. Neither side insisted upon recording the compromise and passing the decree accordingly, in terms of Order 23 of the Code of Civil Procedure and that is why the matter was decided on merits. When the matter was decided on merits, compromise having failed, the statement regarding compromise, which was recorded by the trial Judge on 8th October, 1993, could not have been taken into consideration as a piece of evidence for deciding the case on merits. 6. In view of the abovestated position, substantial question of law is answered against defendant-appellant. Hence, the appeal is dismissed. Appeal stands disposed of. March 16, 2010(sd) ( Surjit Singh ), J