IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.401 of 2000 along with RSA Nos.387 & 397 of 2000. Date of Decision: 11.12.2009. RSA No.401 of 2000: Dev Raj Harish ….Appellant Versus B.S. Bali ….Respondent RSA No.387 of 2000: B.S. Bali ….Appellant Versus Dev Raj Harish ….Respondent RSA No.397 of 2000: B.S. Bali ….Appellant Versus Dev Raj Harish ….Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. Ajay Kumar, Advocate in RSA 401/2000. Mr.Karan Singh Kanwar, Advocate in RSA Nos.387 & 397 of 2000. For the Respondent(s): Mr.Karan Singh Kanwar, Advocate in RSA No.401 of 2000. Mr.Ajay Kumar, Advocate in RSA Nos.387 & 397 of 2000. Deepak Gupta, J.( Oral). These three appeals are being disposed of by a common judgment since they all arise out of one - 2 - judgment delivered by the learned District Judge, Shimla in three appeals arising out of three different suits between the same parties. Sh.B.S. Bali (hereinafter referred to as the plaintiff) filed a suit against Sh.Dev Raj Harish (hereinafter referred to as the defendant) in the year 1988 which was registered as Case No.165/1 of 1991/88. In this suit he sought issuance of a decree of permanent prohibitory and mandatory injunction against the defendant. According to the plaintiff he was the owner of land measuring 98 sq.yards bearing khasra No.366/1/6/10 in Mauja Station Ward, Bara Shimla since he had purchased the same from the previous owner through sale deed dated 26.9.1979. According to the plaintiff after purchase of the land he constructed a house on the said land and submitted a completion plan to the Municipal Corporation, Shimla which was duly approved vide letter dated 23.5.1985. It was alleged that defendant Dev Raj Harish purchased a plot bearing khasra No.366/1/6/9 which is adjacent to the plot of the plaintiff on 21.7.1987. The defendant started cutting and digging operation in the year 1988 with a view to construct his house. According to the plaintiff the said operations were being - 3 - carried out in such a manner that no set-back area would be left by the defendant and encroachment would be caused on the common path in front of the properties of the parties. The defendant Dev Raj Harish contested the suit. He did not deny the ownership of the plaintiff over khasra No.366/1/6/10. According to him he was raising construction on his own plot. He alleged that in fact the plaintiff Sh.B.S. Bali while raising the construction not only did not leave any set backs but also encroached upon the land of the defendant in khasra No.366/1/6/9. During the pendency of the aforesaid suit, Sh.B.S. Bali plaintiff filed another suit against defendant Dev Raj Harish in the year 1989 which was registered as Civil Suit No.166/1 of 1991/89. According to the plaintiff, the defendant was raising construction on khasra No.366/1/6/9 without any sanction from H.P. Town and Country Planning authorities and without getting the building plan approved from the Municipal Corporation, Shimla. It was alleged that Sh.Dev Raj Harish had filed a suit against the Municipal Corporation Shimla praying that the plan submitted by him for raising construction on khasra No.366/1/6/9 be deemed to be approved and the - 4 - Municipal Corporation be restrained from interfering in his right to raise construction or demolish the construction already raised. The plaintiff alleged that he had not been impleaded as party to that suit and hence he had to file second suit. The second suit was also contested by the defendant and it was alleged that since the plan submitted by the defendant to the Municipal Corporation on 24.10.1988 had not been approved or rejected within six months the same must be deemed to have been sanctioned/approved. The defendant Dev Raj Harish also filed a suit against the plaintiff B.S. Bali in the year 1989 which was registered as Case No.498/1 of 1989. In this suit he prayed for appointment of a Local Commissioner to demarcate the properties of the parties and also for issuance of a mandatory injunction directing Sh.B.S. Bali to vacate the encroachment, if any, which he had made on khasra No.366/1/6/9 belonging to Dev Raj Harish. Issues were framed in all the suits and they were consolidated. They were tried together and disposed of by a common judgment. The learned trial Court dismissed both the suits filed by Sh.B.S. Bali and decreed the suit of - 5 - Sh.Dev Raj Harish and passed a decree for mandatory injunction directing Sh.B.S. Bali to remove the encroachment to the extent of four sq.yards made on a portion of khasra No.366/1/6/9 as depicted by khasra No.366/1/6/9/2 in the Tatima Ext.DW-1/J. Sh.B.S. Bali filed three appeals against the said judgment. The learned Lower Appellate Court dismissed the two appeals filed by Sh.B.S. Bali arising out of the suits filed by him but allowed the appeal filed by him in respect of the decree passed against him in the suit filed by Dev Raj Harish. Consequently, the suit of Sh.Dev Raj Harish was also dismissed. Hence, these three appeals two by Sh.B.S. Bali and one by Sh.Dev Raj Harish. The learned District Judge came to the conclusion that the dispute between the parties could be resolved only by getting the properties of the parties demarcated by appointing a Local Commission or by directing the parties to seek demarcation from the competent Revenue Officer. The trial Court itself did not appoint any Local Commissioner. It relied upon the result of a demarcation carried out by the Kanungo on the application of defendant Dev Raj Harish in the year 1988 and another report of demarcation submitted by the - 6 - Patwari, Municipal Corporation in proceedings under the H.P. Municipal Corporation Act. As far as the report of the Patwari Ext.DW-1/F is concerned the learned lower Appellate Court held, and rightly so, that a Patwari is not competent to give demarcation and therefore his report Ext.DW-1/F could not be considered while deciding the matter. There is nothing wrong with this finding of the learned District Judge. The second report Ext.PX is the report given by the Kanungo on the application of Sh.Dev Raj Harish. According to this report Ext.PX, the Kanungo found that in fact one Sh.Ram Ashra Lakhanpal who is not party to these proceedings had encroached upon 25 sq.yards of land in the plot of the defendant Dev Raj Harish. The Kanungo further observed that if demarcation was carried out from the other side he could not rule out the possibility of plaintiff B.S. Bali having encroached upon the land of the defendant Dev Raj Harish to the extent of one or two ft. A clear cut finding was given in this report that as far as Dev Raj Harish is concerned he has not made any encroachment either on the land of the plaintiff B.S. Bali or on the land of Ram Ashra Lakhanpal. - 7 - The report of the Kanungo was accepted by Sh.B.S. Bali who appeared in the witness box as PW-1. He admitted that said demarcation took place in his presence and he was satisfied with the result of the said demarcation. This report has been produced by Sh.Dev Raj Harish. It clearly shows that no encroachment has been done by Sh.Dev Raj Harish. Even with regard to Sh.B.S. Bali the report did not give any clear cut finding of encroachment. It is only stated that if demarcation is carried out from the other side possibility of encroachment cannot be ruled out. Admittedly, no demarcation was carried out from the other side. The plaintiff Sh.B.S. Bali did not get any demarcation done. He did not lead any positive evidence as to what is the exact boundary of the land. Only if such boundary was established could it be determined whether the defendant Dev Raj Harish has left proper set-backs or not towards the property of the plaintiff. Sh.Karan Singh Kanwar, learned counsel appearing for the Sh.B.S. Bali has relied upon certain documents including notices which the Municipal Corporation has sent to the defendant Dev Raj Harish alleging that he has not kept proper set backs. The production or exhibition of - 8 - these documents is not proof of the fact that the defendant has not kept proper set backs. This is only an allegation made by the Municipal Corporation. For the foregoing reasons, I find that there is no merit in the present appeals. The learned Lower Appellate Court has come to a finding of fact based on evidence. No question of law much less a substantial questions of law arising in the appeals. All the appeals are accordingly dismissed. It is however, clarified that the dismissal of these appeals and the finding recorded in these three civil suits which give rise to the present appeals will have no bearing on the suit filed by Sh.Dev Raj Harish against the Municipal Corporation, Shimla. Neither the Lower Appellate Court nor this Court have come to a finding that defendant Dev Raj Harish has violated or not violated the Municipal laws. This question has not been decided since land of the parties has not been demarcated. With these observations, the aforesaid appeals are disposed of. No order as to costs. December 11, 2009. ( Deepak Gupta ), J. PV