JUDGMENT This judgment shall dispose of RSA Nos. 416 and 442 of 1999. The facts, in brief, are that K.R.Verma had filed a suit for permanent prohibitory injunction and mandatory injunction against Rajinder Singh vide plaint dated 15.12.1987. The plaint was amended and Para 7-A added, amended plaint dated 02.08.1988 was filed. The pleaded case of K.R.Verma is that he had purchased three storeyed building known as ‘Laxmi Ram Building’ along with land comprised in Khasra No.407/365/1/2/1/1, Village Majthai from its previous owner Laxmi Ram along with all rights, title and interest in the adjoining land vide sale document dated 02.02.1958 from Krishan Singh father of Rajinder Singh. It has been pleaded that since then K.R.Verma has been coming in possession of the land and building purchased by him. 2. The further case of K.R.Verma is that on the backside of the three storeyed building, there exists five feet wide retaining wall top of which is being used for passage by plaintiff through his predecessor for the last more than 30 years. The said retaining wall is in exclusive possession of the plaintiff for the last more than 30 years through his predecessor-in-interest Laxmi Ram. There is an open plot of land situated towards South of the said building of the plaintiff which open plot of land is also owned by the plaintiff. 3. On the East Southern side of the building of the plaintiff there is land of Rajinder Singh defendant, who had started illegal digging towards the land and property of the plaintiff. Rajinder Singh with the help of Arjun Dev Grover, Bimla Grover and others damaged part of the retaining wall. The plaintiff has obtained injunction order against Arjun Dev Grover and Bimla Grover, who had encroached part of the aforesaid plot of the plaintiff situated on the back of the building of the plaintiff. Rajinder Singh has not stopped illegal interference and digging despite repeated requests. Rajinder Singh is threatening to raise construction on his adjoining land in violation of mandatory provisions of Town and Country Planning Act. 4. The defendant is liable to be ordered to restore the entire part of the retaining wall which has been illegally damaged by him. The plaintiff has acquired right of support to plinth protection retaining wall running parallel to the basement floor from the adjoining land since the year 1958. 4. The defendant is liable to be ordered to restore the entire part of the retaining wall which has been illegally damaged by him. The plaintiff has acquired right of support to plinth protection retaining wall running parallel to the basement floor from the adjoining land since the year 1958. The plaintiff is owner in possession of retaining wall and entire open land adjoining to East Southern side of the said building of the plaintiff as per document dated 02.02.1958. All rights, title and interest of any person with regard to said land have been extinguished and same have been vested in the plaintiff. 5. The defendant has illegally encroached upon the land of the plaintiff during the pendency of the suit. He has raised illegal construction of one room despite service of injunction order dated 17.12.1987. The construction was made during the pendency of the suit. The defendant is liable to be directed by issuance of mandatory injunction to remove the same. The defendant has no right, title and interest to raise construction over the land and property of plaintiff. 6. The suit was contested by Rajinder Singh by filing written statement dated 17.11.1988. He took preliminary objections of maintainability, plaintiff has not approached the Court with clean hands, estoppel, plaintiff wants to grab the land of the defendant and his other co-sharers, want of cause of action, plaintiff has no existing right, title and interest over the land of defendant, the suit lacks material particulars. On merits, it has been stated that plaintiff had purchased only 3 biswas of land comprised in Khasra No.407/365/1/2/1/1 mauza Majthai. 7. The plaintiff has no concern with any land on the spot except land measuring 3 biswas comprised in Khasra No.407/365/1/2/1/1. Laxmi Ram had purchased 5 biswas land from Daya Nand. Laxmi Ram had sold 3 biswas to plaintiff and remaining 2 biswas to Bimla Grover in the year 1985-1986. At the time of purchase of land by plaintiff, there was only three storeyed building on the spot and nothing more. There was no retaining wall on the spot as claimed by the plaintiff. The existence of 5 feet retaining wall and passage over retaining wall has been denied. 8. The defendant Rajinder Singh and mother had constructed one ‘Dhara’ on the spot in December 1987, which was stealthily removed by plaintiff. The matter was reported to the police. There was no retaining wall on the spot as claimed by the plaintiff. The existence of 5 feet retaining wall and passage over retaining wall has been denied. 8. The defendant Rajinder Singh and mother had constructed one ‘Dhara’ on the spot in December 1987, which was stealthily removed by plaintiff. The matter was reported to the police. The defendant and his mother are owners in possession of land in question. They have constructed one room on their own land. It has been denied that construction has been raised by defendant with the help of Arjun Dev Grover and his wife. 9. The allegations with regard to damage to the foundation and building of the plaintiff were denied. There is no requirement of obtaining permission from the Director, Town and Country Planning. The plaintiff has not pleaded how he has become owner of the land nor he has given the area of the land in the plaint. The plaintiff has concocted a false story, the remaining claim of the plaintiff was denied. 10. The defendant Rajinder Singh set up counter-claim. It has been stated that for the last about two months plaintiff had been making efforts to encroach the land of the defendant. He has encroached some portion of the land of the defendant and constructed one room without the consent of the defendant. The plaintiff is liable to vacate the accommodation. The defendant has prayed decree of mandatory injunction against the plaintiff. 11. Krishna Devi and Santosh Kumari filed written statement dated 16.09.1991. The defendants have partitioned their land comprised in Khasra No.400/365 measuring 2 bighas 13 biswas mauza Majthai after excluding 3 x 7 ‘gathas’ contiguous to the other land and property of the plaintiff comprised in Khasra No.407/365/1/2/1/1. They have pleaded that land measuring 3 x 7 ‘gathas’ which is contiguous to the aforesaid Khasra Number of plaintiff was sold by Krishan Singh predecessor-in-interest of defendant vide writing dated 02.02.1958 to Laxmi Ram predecessor-in-interest of plaintiff. 12. Laxmi Ram sold 3 x 7 ‘gathas’ land to the plaintiff at the time of sale deed executed by him in favour of plaintiff on 19.05.1986. The plaintiff is now in possession of 3 x 7 ‘gathas’ land contiguous to his land comprised in Khasra No.407/365/1/2/1/1. They denied any interference in the ownership and possession of the land of the plaintiff. The plaintiff is now in possession of 3 x 7 ‘gathas’ land contiguous to his land comprised in Khasra No.407/365/1/2/1/1. They denied any interference in the ownership and possession of the land of the plaintiff. They have alleged that defendant No.1 has committed illegal acts. They prayed for dismissal of the suit. 13. The plaintiff filed replication to the written statement dated 17.11.1988 of Rajinder Singh. He reiterated his stand and denied the case of Rajinder Singh. The counter-claim filed by defendant was also denied. The plaintiff filed an application under Order 1 Rule 10 CPC dated 03.05.1989 for impleading Varinder Singh, Meera Devi, Santosh, Pushpa Devi, Radha Devi and Krishana Devi as defendants. This application was allowed on 23.08.1991. It appears from the record of the trial Court that later on vide order dated 27.09.2006 when the matter was pending in second appeal the trial Court substituted the name of Varinder Singh as Devinder Singh minor son of late Varinder Singh. On the pleadings of the parties, the following issues were framed on 19.11.1991 and 10.05.1993:- 1. Whether the plaintiff acquired ownership and possession of suit land particularly with regard to land adjoining to Khasra No.407/365/1/2/1/1 measuring 3/7 gathas vide document dated 2.2.58 as alleged? OPP. 2. Whether the plaintiff is entitled to relief of mandatory injunction as prayed? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff is estopped to file this suit by his own act and conduct as alleged? OPD. 5. Whether the plaintiff has no cause of action to file this suit? OPD. 6. Whether the plaintiff has encroached upon the land of defendants as per counter claim? OPD. 7. Whether the report of the Local Commissioner is liable to be set aside? OP Objector. 8. Relief. The issues No.1 and 2 were partly answered in affirmative, issues No.3 to 6 in negative and issue No.7 partly in negative. The suit of the plaintiff was decreed for mandatory injunction by directing defendants to demolish construction raised on land comprised in Khasra No. 407/365/1/2/1/1/1 measuring 3 biswansis shown in ‘Aks Musabi’ Ex. PW5/B and remaining claim of the plaintiff and the counter claim were dismissed on 22.09.1993 as per operative part of judgment 14. Rajinder Singh, Meera Devi, Pushpa Devi, Radha Devi filed Civil Appeal No.90-S/13 of 1994/93 against judgment, decree dated 22.09.1993. PW5/B and remaining claim of the plaintiff and the counter claim were dismissed on 22.09.1993 as per operative part of judgment 14. Rajinder Singh, Meera Devi, Pushpa Devi, Radha Devi filed Civil Appeal No.90-S/13 of 1994/93 against judgment, decree dated 22.09.1993. K.R.Verma filed Civil Appeal No.106-S/13 of 1993 against judgment, decree dated 22.09.1993. The learned Additional District Judge, Shimla, dismissed Civil Appeal No.90-S/13 of 1994/93 and Civil Appeal No. 106-S/13 of 1993 by common judgment dated 23.07.1999. K.R.Verma has filed RSA No.416 of 1999 against common judgment, decree dated 23.07.1999 in Civil Appeal No.106-S/13 of 1993 for decreeing the suit fully. Rajinder Singh, Meera Devi, Pushpa Devi, Radha Devi filed RSA No.442 of 1999 against common judgment, decree dated 23.07.1999 in Civil Appeal No. 90-S/13 of 1994/93 and Civil Appeal No. 106-S/13 of 1993 for dismissing suit and allowing counter claim. 15. RSA No.416 of 1999 has been admitted on following substantial questions of law:- 1 .Whether the subsequent purchaser is entitled to protect his possession under Section 53-A of the Transfer of Property Act against the sellers and successors-in-interest of vendors who transferred the possession by un-registered and un-stamped sale documents? 2. Whether the sale document Ex.P-2 required registration at the relevant time? 3. Whether the admission made in the written statement by the co-defendants/co-sharers could not be relied upon as concluded by the Courts below unless the same were re-affirmed by the concerned parties in their evidence? 16. RSA No.442 of 1999 has been admitted on following substantial questions of law:- 1. Whether the report of Local Commissioner Exts. PW-5/A and PW-5/B is a result of demarcation which was not carried out in accordance with law and had materially effected the findings of the Courts below? 2. Whether the report of Local Commissioner was vitiated on account of the appellants having made objections against the appointment of Sh.B.R.Lakhanpal as Local Commissioner? 3. Whether the objections of the appellants against the report of Local Commissioner were rejected without acceptable reasons? 17. I have heard Mr.Ashok K.Sood, Advocate, for appellant in RSA No.416 of 1999 and for respondent No.1 in RSA No.442 of 1999 and Mr.G.D.Verma, Senior Advocate, for appellants in RSA No.442 of 1999 and for respondents No.1,3 and 5 in RSA No.416 of 1999 and have also perused the record. The name of Smt. Radha Devi has been deleted in both the appeals. 18. The name of Smt. Radha Devi has been deleted in both the appeals. 18. The perusal of record of the trial Court shows that issues were framed on 02.01.1989, 19.11.1991 and 10.05.1993. In the judgment dated 22.09.1993 reference of issues dated 19.11.1991 and 10.05.1993 has been made. The same issues have been reproduced in the judgment dated 23.07.1999 of the first appellate Court. At the time of hearing of appeals also, no grievance has been raised about the issues dated 02.01.1989. It appears from the stand of parties that parties have accepted that issues dated 19.11.1991 have covered the issues dated 02.01.1989. The parties from their conduct have thus given up issues dated 02.01.1989 and accepted the adjudication on issues dated 19.11.1991 and 10.05.1993 only. 19. The substantial question of law No.1 in RSA No.416 of 1999 is of Section 53A of the Transfer of Property Act. It has been contended on behalf of plaintiff that plaintiff through his predecessor-in-interest is entitled to protection of Section 53A on the basis of document dated 02.02.1958 Ex. P-2/1. The Section 53A of Transfer of Property Act, 1882, at the relevant time was as under:- “53A. It has been contended on behalf of plaintiff that plaintiff through his predecessor-in-interest is entitled to protection of Section 53A on the basis of document dated 02.02.1958 Ex. P-2/1. The Section 53A of Transfer of Property Act, 1882, at the relevant time was as under:- “53A. Part performance.- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 20. The plaintiff with the aid of Section 53A has submitted that he is entitled to protect his possession over land 3 x 7 ‘gathas’ described in document dated 02.02.1958 Ex. P-2/1 which is Hindi translation of Ex.P-2 in Urdu. The plaintiff in the plaint has not taken the plea of part performance under Section 53A. The plea of part performance is a mixed question of fact and law. The other side must be given an opportunity to meet the plea of part performance. In Illikkal Devaswom v. Pottakkatt Narayanan Raghavan and another AIR 1966 Kerala 96, without foundation in pleadings of part performance, the plea was not permitted. The plea of part performance is a mixed question of fact and law. The other side must be given an opportunity to meet the plea of part performance. In Illikkal Devaswom v. Pottakkatt Narayanan Raghavan and another AIR 1966 Kerala 96, without foundation in pleadings of part performance, the plea was not permitted. In Nigamananda Patra and others v. Sarat Chandra Patra and others AIR 1998 Orissa 19, the plea of part performance in absence of plea in the written statement was not allowed to be taken. There is no specific issue of part performance. 21. Mr. Ashok Sood, Advocate, has relied Shesh Mal and others v. Harak Chand and others AIR 1983 Rajasthan 109 and has submitted that in absence of specific plea of part performance, the plaintiff is entitled to put forward his case to take benefit of Section 53A. In Shesh Mal (supra), it has been held that if sufficient and necessary facts have been pleaded, on the basis of which a plea of part performance could be legitimately raised, then it would not be proper to deprive the defendant of defence available to him under Section 53A on the ground of mere technicality. In other words, it has been held that there must be pleadings on the basis of which a plea of part performance could be legitimately raised. In the present case, there is no pleading of part performance. 22. The pleading of part performance does not end with the pleading of document only. It requires more than that. In absence of plea of part performance or necessary facts giving rise to plea of part performance in the plaint, the plaintiff is not entitled to take shelter under Section 53A against defendants or their predecessors. Thus, substantial question of law No.1 in RSA No.416 of 1999 is decided against the plaintiff. 23. It is the case of the plaintiff that Krishan Singh in consideration of Rs.325/-sold 3 x 7 ‘gathas’ land to Laxmi Ram on 02.02.1958 vide Ex. P-2/1. The Section 17(1)(b) of the Registration Act, 1908, provides registration of other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. P-2/1. The Section 17(1)(b) of the Registration Act, 1908, provides registration of other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. It has been stated in the document dated 02.02.1958 that the land measuring 3 x 7 ‘gathas’ in consideration of Rs. 325/- has been sold. The bare perusal of Ex.P-2/1 makes it clear that by virtue of this document the seller intended to sell 3 x 7 ‘gathas’ land. The Section 49 of the Registration Act provides that no document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall affect any immovable property comprised therein, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. 24. The combined reading of Sections 17 and 49 of the Registration Act makes it clear that Ex.P-2 or Ex.P-2/1 requires registration. It is not the plea of the plaintiff that 3 x 7 ‘gathas’ of land was sold by Krishan Singh to Laxmi Ram, predecessor-in-interest, of plaintiff, orally, rather specific case of plaintiff is that 3 x 7 ‘gathas’ of land was sold by written document dated 02.02.1958 by Krishan Singh in favour of Laxmi Ram, predecessor-in-interest, of plaintiff. In Bank of Upper India Limited Versus Robert Hercules Skinner and others AIR 1942 PC 67, it has been held that a document intended to affect transfer of immovable property of the value of Rs.100/- or upwards must be registered. Therefore, document Ex.P-2 or Ex.P-2/1 required registration. In absence of registration, this document cannot be read in evidence. The substantial question of law No.2 in RSA No. 416 of 1999 is decided accordingly. 25. The learned counsel for the plaintiff has contended that Krishna Devi and Santosh Kumari widow and daughter of Krishan Singh have pleaded in their written statement that 3 x 7 ‘gathas’ land was sold by Krishan Singh vide writing dated 02.02.1958 to Laxmi Ram, predecessor-in-interest, of plaintiff. They have also pleaded that Laxmi Ram had sold said 3 x 7 ‘gathas’ land to plaintiff at the time of sale deed dated 19.05.1986 Ex. P-1. They have also pleaded that Laxmi Ram had sold said 3 x 7 ‘gathas’ land to plaintiff at the time of sale deed dated 19.05.1986 Ex. P-1. He has submitted that this admission has been made by persons, who had proprietary interests in land measuring 3 x 7 ‘gathas’ through their predecessor Krishan Singh, admission of Krishna Devi and Santosh Kumari is binding on plaintiff all of whom inherited from Krishan Singh. Krishna Devi and Santosh Kumari are defendants in the suit. 26. The record reveals that plaintiff had filed application under Order 1 Rule 10 CPC for impleading some persons including Krishna Devi and Santosh Kumari. The application was allowed on 23.08.1991. Order 1 Rule 10(4) CPC provides that where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary. There is no amended plaint on record after impleading defendants Krishna Devi and Santosh Kumari etc. vide order dated 23.08.1991. The plaintiff cannot take any benefit of aforesaid written statement of Krishna Devi and Santosh Kumari for more than one reason. There are no allegations against Krishna Devi and Santosh Kumari in the plaint inasmuch as plaintiff after allowing his application under Order 1 Rule 10 CPC did not file any amended plaint in terms of Order 1 Rule 10(4) CPC. It appears Krishna Devi and Santosh Kumari in their anxiety to help plaintiff filed written statement without realizing that plaintiff has not filed any amended plaint incorporating allegations against Krishna Devi and Santosh Kumari. This apart, the plaintiff pleaded title over 3 x 7 ‘gathas’ land on the basis of document dated 02.02.1958 Ex.P-2/1 which is inadmissible in evidence for want of registration. In a case where document of title has not been pleaded by the plaintiff and finding is to be returned in absence of document of title, the admission of co-interest holder may be relevant, but this is not the situation in the present case. The title has been pleaded by plaintiff on the basis of Ex.P-2/1 which is inadmissible in evidence. In these circumstances, title on aforesaid 3 x 7 ‘gathas’ land cannot be conferred on plaintiff on the basis of so-called admission of Krishna Devi and Santosh Kumari. 27. The alleged admission of Krishna Devi and Santosh Kumari regarding title of plaintiff over aforesaid 3 x 7 ‘gathas’ land is otherwise inconsequential. In these circumstances, title on aforesaid 3 x 7 ‘gathas’ land cannot be conferred on plaintiff on the basis of so-called admission of Krishna Devi and Santosh Kumari. 27. The alleged admission of Krishna Devi and Santosh Kumari regarding title of plaintiff over aforesaid 3 x 7 ‘gathas’ land is otherwise inconsequential. As per Krishna Devi and Santosh Kumari their father Krishan Singh had sold 3 x 7 ‘gathas’ land to Laxmi Ram, predecessor-in-interest, of plaintiff vide writing dated 02.02.1958. In other words, at the time of filing written statement in the suit, Krishna Devi and Santosh Kumari as per their stand were not the owners of aforesaid 3 x 7 ‘gathas’ land. In Bank of Upper India Limited Versus Robert Hercules Skinner and others AIR 1942 PC 67, it was held that an acknowledgement made by mortgagors after they had parted with all their interest would not bind the purchaser. Krishna Devi and Santosh Kumari as per their stand have no existing title in the aforesaid 3 x 7 ‘gathas’ land. Therefore, their stand that this land was sold by Krishan Singh to Laxmi Ram, predecessor-in-title, of plaintiff has no binding effect on other defendants. 28. In Gangaram Kanhya Lal Versus Pooran Gulab and others AIR 1954 M.B. 58, it has been held that statements made by persons from whom the parties to a suit have derived their interest in the subject-matter of the suit are admissible as admissions only when the admissions are of date prior to the date of transfer. Here, again the so-called admission of Krishna Devi and Santosh Kumari in their written statement is not prior to 02.02.1958, but after filing of the suit. Therefore, plaintiff cannot take any benefit of the so-called admissions of Krishna Devi and Santosh Kumari. The document of title Ex. P-2/1 projected by plaintiff is inadmissible in evidence. There is no other legal evidence on record to record a finding of title of plaintiff over aforesaid 3 x 7 ‘gathas’ land. The substantial question of law No.3 in RSA No.416 of 1999 is decided against the plaintiff. 29. The substantial questions of law No.1 to 3 in RSA No.442 of 1999 are inter-connected, therefore, all of them are taken up collectively for determination. Mr. The substantial question of law No.3 in RSA No.416 of 1999 is decided against the plaintiff. 29. The substantial questions of law No.1 to 3 in RSA No.442 of 1999 are inter-connected, therefore, all of them are taken up collectively for determination. Mr. Verma learned counsel appearing on behalf of Rajinder Singh, Meera Devi and Pushpa Devi defendants has strenuously contended that Local Commissioner did not demarcate the land in accordance with law. The demarcation report Ex.PW5/A and ‘Aks Musabi’ Ex.PW5/B showing encroachment of three biswansis comprised in Khasra No.407/365/1/2/1/1/1 with one storeyed structure are wrong and illegal. He has submitted that the trial Court had allowed application on 20.07.1992 for appointment of Local Commissioner. In the order dated 20.07.1992, it was wrongly observed that both parties agreed for the appointment of Mr.B.R.Lakhanpal as Local Commissioner. He has submitted that an application dated 08.09.1992 was filed by defendants for recalling the order dated 20.07.1992. This application of the defendants was not decided by the trial Court. It has been contended that correct copy of ‘Musabi’ was not available for demarcation as observed by Local Commissioner on 09.09.1992. The report on material points is contradictory. The defendants filed objections to the report of Local Commissioner which were decided with the main suit without giving an opportunity to defendants to establish the objections. The appointment of Local Commissioner was not at all required in view of earlier demarcation of the land at the instance of plaintiff. The two Courts below erred in relying report Ex.PW5/A and ‘Aks Musabi’ Ex.PW5/B while granting decree of mandatory injunction. 30. PW-1 B.R.Lakhanpal (this witness has also been numbered PW-1 by trial Court) has stated that on spot there was ‘pucca’ point. One ‘pucca’ point was accepted by both the parties. In cross-examination, he has stated that he had not taken three ‘pucca’ points on the spot. Ex. PW5/A is the demarcation report dated 22.09.1992. In the report, it has been stated that defendants were informed through their Advocate and husband of Meera Devi. The requisite documents were brought by plaintiff. The parties indicated that North Western corner of the house of the plaintiff which is also North Western corner of the plaintiff’s land bearing Khasra No.407/365/1/2/1/1 was undisputed. The measurement was started from this undisputed point. There is no other permanent point within a reasonable distance of about 200 ‘Kadams’. The requisite documents were brought by plaintiff. The parties indicated that North Western corner of the house of the plaintiff which is also North Western corner of the plaintiff’s land bearing Khasra No.407/365/1/2/1/1 was undisputed. The measurement was started from this undisputed point. There is no other permanent point within a reasonable distance of about 200 ‘Kadams’. The dispute about encroachment relates to land bearing Khasra No. 407/365 and Khasra No.407/365/1/2/1/1. It has been stated that plaintiff had purchased land bearing Khasra No. 407/365/1/2/1/1 measuring 3 biswas. On this land the house of the plaintiff is constructed on 2 biswas and the remaining 1 biswa is shown in mutation No.901 as ‘ghasni’. This 1 biswa is at present open land on the spot. Out of Khasra No.407/365/1/2/1/1 land measuring 3 biswansis comprised in Khasra No.407/365/1/2/1/1/1 was found encroached. The encroachment was found on Khasra No.548/365 (3 x 7 ‘gathas) to some extent. The total encroachment was found 48 biswansis. 31. PW-1 K.R.Verma has stated that he had purchased land and property from Laxmi Ram in the year 1986 vide sale deed Ex.P-1. There is three storeyed constructed house and adjacent to it there is open land measuring 3 x 7 ‘gathas’. In cross-examination, he has stated that prior to him Grover had purchased 2 biswas land from Laxmi Ram. He purchased 3 biswas land from Laxmi Ram. Grover had encroached 12 square yards of land purchased by him vide sale deed Ex.P-1. 32. In State of Himachal Pradesh Versus Laxmi Nand and others 1992 (2) SLC 307, it has been held that the demarcating officer was required to relay the boundaries of field sought to be demarcated from the ‘Sajra’ ( Village Map), prepared at the last settlement. He was required to locate three permanent points on three different sides of the area sought to be demarcated. In Hari Dass & others Versus State of H.P. 1996 (2) SLC 370, it has been held that the demarcation is to be carried by the revenue authorities in accordance with the provisions of the Himachal Pradesh Land Revenue Act,1953, as well as in accordance with the instructions of the Financial Commissioner. The revenue authorities are duty bound under Section 107 of the Himachal Pradesh Land Revenue Act, 1953, to carry out the same. The revenue authorities are duty bound under Section 107 of the Himachal Pradesh Land Revenue Act, 1953, to carry out the same. The aforesaid identical instructions of Financial Commissioner were considered in both cases State of Himachal Pradesh Versus Laxmi Nand and others and Hari Dass and others Versus State of Himachal Pradesh. 33. The Chapter 10.2 of The Himachal Pradesh Land Records Manual provides as follows:- “10.2 The Financial Commissioner (Rev) Himachal Pradesh has issued the following instructions for the guidance of Revenue Officers and Field Kanungos dealing with the encroachment cases or disputes as to boundaries. With a view to ensure uniformity of practice and correctness, the Financial Commissioner Himachal Pradesh is pleased to issue the following instructions for the guidance of Revenue Officers and Field Kanungos for the purpose of delimitation of the boundaries cases under the provisions of Section 107 of the said Act:- I. If a boundary is in dispute, the Revenue Officer or the Field Kanungo should relay it from the Village-map prepared at the last settlement. If there is a map which has been made on triangulation system ( Musalas bandi) he should find three fixed recognizable points on different sides of the place in dispute as near to it as he can, which are shown in the map. These points should be such as admitted by the parties that have remained undisturbed since the last settlement. II. If the parties cannot agree on any such fixed recognizable points, then the Revenue Officer/Field Kanungo will find such points themselves with the help of the field map and chaining on the spot which they find undisturbed since the last settlement. III. They, then will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from those lines to each of the points in which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map. IV(a)If three fixed points are not available and only two fixed recognizable points are available, a third point may be found out with the help of these two points so as to form a triangle. It should be seen that the sides of such a triangle when checked on the spot tally with the distances given between these points in the map. Then the land be demarcated by this procedure as laid down in instruction III above. IV(b) the two adjoining fields may have a common inter-looking boundary line. If other dimensions (Karu Kan) of these fields tally on measurements the 2 points of this line can be treated as two points referred to in instruction IV above. V. There can arise cases where even two fixed recognizable points are not available and only one point is admitted by the parties as fixed or found out by the Revenue Officer/Field Kanungo. Such points are generally the ones where corners of two or more fields meet. The reliability of such a point can be tested by measuring the sides of the fields adjoining or surrounding the point. If the measurements of such fields tally with the map then the accuracy of such a point itself gets established. Such a point may be fixed as a starting point for demarcation. VI. The main purpose in following procedure in the foregoing instructions is to test the accuracy of the points on the map of the last settlement for which the relevant instructions are contained in Appendix-XXI of the Punjab Settlement Manual as applicable in Himachal Pradesh. The relevant extract is reproduced as below:- “A few fields too should be checked by their sides being measures. The relevant extract is reproduced as below:- “A few fields too should be checked by their sides being measures. The correctness of a map is much more certainly determined by means of checking corners of fields and other fixed recognizable points than by merely seeing whether the cuttings of the diagonals are at the same distances as at settlement. While testing accuracy of existing map by lines ( farzi water), discrepancies upto 2 per cent may be neglected.” VII. In demarcation of land comprising Khasra numbers that have undergone amendment due to changes due to causes such as by partitions, transfer of fractions of fields or new Khasra numbers that came into existence by acquisition of Land by nautor it should be ensured that the field map (Patwari copy and Maumi copy) have been amended and updated in accordance with the provisions of Para 4.30 & 4.31 of H.P. Land Records Manual. The demarcation should be given on the basis of such amended maps. VIII. If there is a map which has been made on the square system, the Revenue Officer or the Field Kanungo should reconstruct the square in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points from line of a square and then with the chain and cross staff mark out the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map. IX. In the report to be prepared/submitted by the Revenue officer/Field Kanungo, it must be explained in detail how he made his measurement. He should submit a copy of the relevant portion of the last settlement field map (Musavi) of the village showing the fields with their dimensions (Karu Kan) of which he took measurement as mentioned in instructions supra and the boundary in dispute. He should submit a copy of the relevant portion of the last settlement field map (Musavi) of the village showing the fields with their dimensions (Karu Kan) of which he took measurement as mentioned in instructions supra and the boundary in dispute. There should also be a mention in this report as to what method was adopted and the way he fixed the starting points and the fields he measures and the result of such measurement. All the fields and points measured should be shown in the site plans, within the frame of copy of musavi. X. If a question is raised as to the position of the disputed boundary according to the field map of the settlement preceding the current settlement, that also should be demarcated on the ground so far as this may be possible and also shown in the copy of the current field map to be submitted under instruction No.IX. XI. On the same site plan should be shown also the limits of the existing possession. XII. The areas of the fields abutting on the boundary in dispute as recorded at the time of last settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Revenue Officer’s or the Field Kanungo’s report with an explanation of the cause of increase or decrease if any discovered. XIII. When taking his measurement the Revenue Officer or Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the mater in dispute. At the end he should record the statements of all the parties to the effect that they have seen and understood the measurements, they have no objection to make to this (or if they have any objection, he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. If constantly happens that when the report comes before the Revenue Officer or the Civil Court, one or other parties impunges the correctness of the measurement and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent. If constantly happens that when the report comes before the Revenue Officer or the Civil Court, one or other parties impunges the correctness of the measurement and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent. XIV.(i) As provided under rule 37 of the Punjab Land Revenue Rules applicable to Himachal Pradesh, a Revenue Officer may issue a commission with the consent of all the contesting parties in cases instituted with him under section 107 of the Himachal Pradesh Land Revenue Act in urgent and exceptional cases, for reasons to be recorded in writing. The Revenue Officer may order such sum as he thinks reasonable for the expenses of the commission to be paid into court by the parties. When a Government servant is appointed as Commissioner, the provisions of S.R.12 shall be adhered to. (ii). The Local Commissioner shall follow the procedure prescribed in the preceding instructions during demarcation. On the receipt of report of local Commissioner, the Revenue Officer shall summon all the interested parties and record their statements. In case one of the parties objects to the demarcation and the report of local Commissioner, the Revenue Officer shall demarcate the land in dispute himself in the manner prescribed in the instructions supra. These instructions will also be followed by the Revenue Officers/Field Kanungos whenever they are appointed as Commissioners by a Civil Court in suits involving disputed boundaries.” 34. The trial Court directed the Local Commissioner to demarcate Khasra No.407/365/1/2/1/1 and the adjoining land to ascertain the encroachment. It is clear from the order dated 20.07.1992 that Khasra No.407/365/1/2/1/1 and adjoining land were in dispute and those were to be ascertained by way of demarcation. It has not been stated in the report Ex.PW5/A whether map on the basis of which demarcation was carried out was made on triangular system or square system. But, it appears from the report that map on the basis of which demarcation was given was on triangular system. The Financial Commissioner instructions are clear that Revenue Officer or Field Kanungo should find out three points on different sides of the place in dispute as near to it as Revenue Officer or Field Kanungo can, which are shown in the map. These points should be such as admitted by the parties that have remained undisturbed since last settlement. The Financial Commissioner instructions are clear that Revenue Officer or Field Kanungo should find out three points on different sides of the place in dispute as near to it as Revenue Officer or Field Kanungo can, which are shown in the map. These points should be such as admitted by the parties that have remained undisturbed since last settlement. According to report Ex.PW5/A, the North Western corner of the house of the plaintiff which is also North Western corner of the plaintiff’s land bearing Khasra No.407/365/1/2/1/1 was undisputed. Therefore, Local Commissioner took North Western corner of the plaintiff’s land bearing Khasra No.407/365/1/2/1/1 as fixed point for the demarcation. 35. The first step of Local Commissioner in identifying the fixed point for demarcation is in conflict with instructions of Financial Commissioner for carrying out the demarcation provided in Chapter 10.2 of H.P. Land Records Manual, 1992. The Local Commissioner in the report has not recorded that there were no fixed points even outside 200 ‘Kadams’. The different sides of the place in dispute referred in the Financial Commissioner’s instructions cannot be construed any point on the place in dispute. It obviously means that fixed point should be outside the place in dispute. 36. In Para-5 of the report Ex.PW5/A, the Local Commissioner has stated that plaintiff has purchased land bearing Khasra No.407/365/1/2/1/1 measuring 3 biswas. On this land the house of the plaintiff is constructed on 2 biswas and the remaining 1 biswa is shown in mutation No.901 as ‘ghasni’. This 1 biswa at present is open land on the spot. In Para-12 of the report, the Local Commissioner has stated that land encroached by defendants is indicated by 3 biswansis i.e. Khasra No. 407/365/1/2/1/1/1 ( in pencil one storeyed structure). Thus, at one place of the report, the Local Commissioner in Paragraph-5 has described the land of plaintiff comprised in Khasra No. 407/365/1/2/1/1 consisting of construction of plaintiff on 2 biswas and 1 biswa open land, but in other part of the report the Local Commissioner has described encroachment of defendants on 3 biswansis of land comprising Khasra No. 407/365/1/2/1/1/1 which is part of Khasra No.407/365/1/2/1/1. The report on this crucial point is contradictory. 37. The defendants filed an application for recalling order dated 20.07.1992 for appointment of Local Commissioner. The defendants also filed objections to the report of the Local Commissioner. The report on this crucial point is contradictory. 37. The defendants filed an application for recalling order dated 20.07.1992 for appointment of Local Commissioner. The defendants also filed objections to the report of the Local Commissioner. The objections to the Local Commissioner report were dismissed by the trial Court in the judgment dated 22.09.1993. There is no specific order of trial Court on the application of defendants for recalling order dated 20.07.1992, therefore, such application shall be deemed to have been dismissed when the suit was decided. It has been contended that no opportunity was given to the defendants to prove their objections. 38. The learned counsel for the defendants has relied Bhumi Chand Versus Braham Dass & another Latest HLJ 2000 (HP) 188, wherein it has been held that learned Judge ought to have taken the said report and the objections on his file and allow the parties to adduce evidence. After all the evidence is adduced, the learned Judge should have considered in the light of such evidence whether the report of the Commissioner was correct and whether any relief could be granted to the plaintiff on the basis of such report. It has also been held that even if the objections are filed to the report of the Local Commissioner, the duty of the Court is to take evidence in the suit itself. Such evidence may also relate to matters covered by the report of the Commissioner. It is only after considering the entire evidence on record with regard to the merits of the suit and the issues arising therein, the Court can come to the conclusion whether report of the Commissioner is correct and whether any relief can be granted to the concerned parties in such a proceeding. In the present case, issue No.7 is to the effect whether the report of the Local Commissioner is liable to be set aside. It was for the defendants, who objected to the Local Commissioner report to lead evidence. Therefore, no fault can be found when the trial Court decided the objections with the main suit on 22.09.1993. 39. However, on the basis of report Ex.PW5/A itself and statement of PW-1 B.R.Lakhanpal, it can be safely concluded that the Local Commissioner has not carried out the demarcation in accordance with the Financial Commissioner’s instructions provided in Chapter 10.2 of the H.P. Land Records Manual, 1992. 39. However, on the basis of report Ex.PW5/A itself and statement of PW-1 B.R.Lakhanpal, it can be safely concluded that the Local Commissioner has not carried out the demarcation in accordance with the Financial Commissioner’s instructions provided in Chapter 10.2 of the H.P. Land Records Manual, 1992. Ex.PW5/A report is dated 22.09.1992, the instructions contained in Chapter 10.2 of the H.P. Land Records Manual, 1992 are dated 07.07.1992. He had not fixed three points or one point as per the instructions. He has not stated that three points were not available immediately beyond 200 ‘Kadams’ from the disputed land. The Local Commissioner wrongly fixed one point from the edge of the land which was in dispute and which was to be demarcated. On one hand in the demarcation report, it has been stated that Khasra No. 407/365/1/2/1/1 consists of 2 biswas constructed and one biswa open land. On the other hand, in the report it has been stated that defendants have encroached 3 biswansis land consisting of Khasra No. 407/365/1/2/1/1/1 by raising construction which is part of Khasra No.407/365/1/2/1/1. PW-1 K.R.Verma has stated that he has purchased 3 biswas land from Laxmi Ram. Grover has encroached 12 square yards of land purchased by him vide sale deed Ex.P-1. 40. The plaintiff has purchased Khasra No. 407/365/1/2/1/1 measuring 3 biswas vide sale deed Ex.P-1, but in the report there is no reference that any other person in addition to defendants has also encroached land of plaintiff comprised in Khasra No.407/365/1/2/1/1. This finding of the Local Commissioner was bound to be there when he was measuring Khasra No.407/365/1/2/1/1 and when plaintiff himself has stated that his 12 square yards land has been encroached out of 3 biswas of land which he has purchased vide sale deed Ex.P-1. 41. The discrepancies in the demarcation report Ex.PW5/A noticed above create serious doubt regarding the correctness of demarcation report Ex.PW5/A and ‘Aks Sajra’ Ex.PW5/B. The Courts below have misconstrued and misinterpreted the evidence. Both the Courts below have wrongly approved the demarcation report Ex.PW5/A and ‘Aks Sajra’ Ex.PW5/B. The demarcation report Ex.PW5/A and ‘Aks Sajra’ Ex.PW5/B are not sustainable and are liable to be set aside. The substantial questions of law No.1 to 3 in RSA No.442 of 1999 are decided in favour of the appellants-defendants. 42. In view of above, RSA No.416 of 1999 is dismissed, RSA No.442 of 1999 is allowed. The substantial questions of law No.1 to 3 in RSA No.442 of 1999 are decided in favour of the appellants-defendants. 42. In view of above, RSA No.416 of 1999 is dismissed, RSA No.442 of 1999 is allowed. The decree of mandatory injunction passed by trial Court and affirmed by the lower appellate Court is set aside, consequently impugned judgment and decree are also set aside. The suit of the plaintiff is dismissed and the dismissal of the counter-claim by the two Courts below is affirmed. No costs.