JUDGMENT Justice V.K.Ahuja, J. (oral) : This is a Regular Second Appeal filed by the appellant/plaintiff under Section 100 C.P.C. against the judgment and decree dated 30.11.2004 passed by the learned Additional District Judge, Mandi, vide which he set aside the judgment and decree of the Court of learned Sub Judge Ist Class, Court No. 3, Mandi, decreeing the suit of the plaintiff for mandatory injunction. 2. Briefly stated, the facts of the case are that the appellant, hereinafter also referred to as ’the plaintiff’ filed a suit for permanent prohibitory and mandatory injunction in the alternative alleging that the plaintiff was in possession of the suit land comprised in Khasra No.86. It was alleged that the land is recorded in joint ownership of the plaintiff and other co-sharers. The defendants are strangers to the land, who started digging foundation of their house/shop on the north side of the land and while doing so, they also encroached upon the portion of the land of the plaintiff and others. The defendants were requested to admit the claim of the plaintiff, but they refused to admit the claim of the plaintiff. Hence, the suit for permanent prohibitory injunction and mandatory injunction filed by the plaintiff. 3.The defendants denied having encroached upon the suit land. They pleaded that they are in ownership and possession on the adjoining land comprised in Khasra No.85 and they dismantled their own house and started construction of a new house, but have not encroached upon any land of the plaintiff. They also pleaded that they got the land demarcated of both the parties and the construction made by them was found to be over their own land. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- “1. Whether the plaintiff is entitled for relief of injunction as prayed? OPP.2.Whether the plaintiff has no enforceable cause of action? OPD.3.Whether the plaintiff has not approached the court with clean hands and has suppressed material facts as alleged? OPD. 4. Whether the plaintiff is also entitled for the relief of mandatory as prayed for? OPP. 5.Relief.” 5.Both the parties led evidence and learned trial Court vide its impugned judgment decided all the issues in favour of the plaintiff and as against the defendants and consequently decreed the suit of the plaintiff for permanent prohibitory injunction as well as for mandatory injunction. 6. OPP. 5.Relief.” 5.Both the parties led evidence and learned trial Court vide its impugned judgment decided all the issues in favour of the plaintiff and as against the defendants and consequently decreed the suit of the plaintiff for permanent prohibitory injunction as well as for mandatory injunction. 6. On appeal, those findings were reversed by the learned Appellate Court. Hence, the second appeal filed by the plaintiff. 7. I have heard the learned counsel for the appellant only and have gone through the record, since the respondents were proceeded against ex-parte. 8.The appeal was admitted on the following substantial questions of law:- “1.Whether the Ist Appellate Court has mis red, mis-interpreted and mis-construed the oral as well as documentary evidence of the parties, especially document Ex. PW­2/A Demarcation Report and Ex.PW-2/B Spot Map, which has caused miscarriage and failure of justice to the appellant? 2. Whether the Judgment & Decree of the Ist Appellate Court is defective, as there is no order for the dismissal of the suit of appellant, which has material prejudiced the case of appellant? 3.Whether the demarcation Report Ex. PW-2/A is in consonance with the H.P. Land Record Manual, and the finding of the Ist Appellate Court is perverse ? 4.Whether the respondents are estopped to deny the genuineness of the demarcation report, which has been accepted by them ? 5Whether the Ist Appellate Court has committed grave error by not remanded the case back to the Trial Court when the demarcation Report of the Local Commissioner is not considered? 9.The plaintiff and others are admittedly owners in possession of the land comprised in Khasra No.86, measuring 0-2-0 bighas, which fact stand established from copy of the Jamabandi for the year 1993-94 Ex.PW-1/A. Defendants have pleaded that they are owners in possession of land adjoining Khasra No.85, but the copy of the said Jamabandi was not placed on record. The plaintiff in his statement, as PW-1, has stated that the defendants have encroached upon the suit land. He also stated about the demarcation carried out by Local Commissioner, who was the Tehsildar, Sadar, who demarcated the land and gave his report accordingly. The plaintiff in his statement, as PW-1, has stated that the defendants have encroached upon the suit land. He also stated about the demarcation carried out by Local Commissioner, who was the Tehsildar, Sadar, who demarcated the land and gave his report accordingly. The said report has been proved in evidence as Ex.PW-2/A and Spot Map/ Tatima is Ex.PW-2/B. The defendant had alleged in the written statement that he had got the land demarcated and found that the construction was on his own land and obtained demarcation report, which never saw light of the day. The Plaintiff relied upon the report of the Tehsildar, Sadar, namely Partap Singh PW2, placed on the record, who had gone to the spot, since he was appointed as Local Commissioner, inspected the spot in presence of the parties, recorded their statements Ex.PW-2/C and Ex.PW-2/D and submitted his report Ex. PW2/A. 10.A perusal of the record shows that the statements of the parties were recorded by the Tehsildar and he submitted his report. The statement of defendant Basakhu Ram has been proved in evidence from the statement of Local Commissioner Ext.PW-2/D. In the said statement, it was stated by the defendant that the demarcation was carried out in the presence of the parties and other witnesses and they were satisfied of the demarcation carried out by the Local Commissioner. No infirmity could be pointed out in the said report of the Local Commissioner that he did not demarcate properly or did not record the statements of the parties as required under the H.P. Land Record Manual. In his report, Ex.PW-2/A, the Local Commissioner had mentioned the permanent points taken by him and he accordingly carried out the demarcation. The only infirmity observed by the learned Appellate Court in the report of the Local Commissioner was that he had not mentioned in the statement of the defendant that he admits that there is encroachment as reported by the Local Commissioner. 11. The learned Appellate Court had not considered the question that the statements of the parties are recorded in regard to the demarcation carried out by the Local Commissioner, the permanent points taken by the Local Commissioner and the objections to the report of the Local Commissioner, if any. 11. The learned Appellate Court had not considered the question that the statements of the parties are recorded in regard to the demarcation carried out by the Local Commissioner, the permanent points taken by the Local Commissioner and the objections to the report of the Local Commissioner, if any. It is not necessary for Local Commissioner to record the statement of the parties that the defendants have encroached upon the land of the plaintiff, as reported by him in his report. It is difficult to hold that a party will admit and make a statement admitting the encroachment and Local Commissioner has only to record the statement of the parties in regard to the permanent points or the objection to the report of the Local Commissioner, if any. Therefore, the conclusion drawn by the learned Appellate Court holding that the statements were not recorded and the said report was not wrongly relied upon by the learned Appellate Court. It is not disputed that the Local Commissioner visited the spot, demarcated the land in their presence and recorded the statements of both the parties, who were satisfied of the demarcation and no objections were raised in their statements in regard to the manner of the demarcation carried out by the Local Commissioner. Therefore, the conclusion drawn by the learned Appellate Court in disbelieving the report of the Local Commissioner for the reasons mentioned above, were not correct. No infirmity has been pointed in the report of the Local Commissioner. Moreover, there is nothing in regard to the report of the Revenue Expert taken by the defendants, which he allegedly took while raising the construction, which was never produced in the Court. 12.From the above discussion, it is clear that the learned trial Court was correct and since the defendants have encroached upon the suit land and mandatory injunction was prayed, the same was rightly granted by the learned trial Court. The Judgment and Decree passed by the learned trial Court was not correct and the demarcation report was in consonance with the H.P. Land Records Manual and the findings by the Ist Appellate Court in disbelieving the said report and disagreeing with the learned trial Court cannot be said to be correct and the defendant was estopped from raising the plea in regard to genuineness of the report, which was admitted to be correct by him at the time of demarcation. 13. From the above discussion, it is clear that the findings recorded by the learned trial Court were based upon correct appreciation of evidence and law, and findings to the contrary of the learned Ist Appellate Court are liable to be set aside, which are accordingly set aside and the judgment and decree passed by the learned trial Court is restored. 14.The appeal stands allowed accordingly. However, the parties are left to bear their own costs.