JUDGMENT : P.S. Rana, Judge. Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellant against the judgment and decree dated 5.2.2013 passed by learned District Judge Hamirpur H.P. in Civil Appeal No. 55 of 2010 titled Rattan Chand vs. Balwant Singh and others whereby learned District Judge Hamirpur affirmed the judgment and decree passed by learned trial Court passed after remand of civil suit. 2. Brief facts of the case as pleaded are that deceased Balwant Singh and Smt. Sansaro Devi plaintiffs filed a suit for fixation of boundaries by way of demarcation of land comprised in Khata No. 107 min Khatauni No. 129 min Khasra Nos. 598, 599 kita 2 area 2 canals 4 marlas as per jamabandi for the year 1995-96 situated in Tika Anu Kalan Mauza Bajuri Tehsil and District Hamirpur with a consequential relief of permanent prohibitory injunction restraining the defendant from raising any construction or changing nature of land and also sought additional relief of possession by way of demolition of construction in case defendant succeed in raising construction over suit land or any part thereof during the pendency of suit. During the pendency of suit Balwant Singh died and his legal representatives brought on record. During the pendency of suit Smt. Sansaro Devi also died and name of Sansaro Devi was ordered to be deleted under Order 1 Rule 10 CPC vide order dated 22.6.1999. It is pleaded that deceased plaintiffs through their legal representatives are owners in possession of land comprised in Khata No. 107 min, Khatauni No. 129 min, Khasra No. 598, 599 measuring 2 canals 4 marlas situated in Anu Kalan, Mauza Bajuri Tehsil and District Hamirpur. It is further pleaded that there are other co-sharers in the suit land but they have not been impleaded as parties and further pleaded that plaintiffs did not deny their right title or interest in the suit land. It is pleaded that no relief is claimed against other co-sharers and it is also pleaded that present suit is filed for their benefit also. It is pleaded that defendant is stranger to the suit land and he has got no right title or interest in or over the suit land. It is pleaded that no relief is claimed against other co-sharers and it is also pleaded that present suit is filed for their benefit also. It is pleaded that defendant is stranger to the suit land and he has got no right title or interest in or over the suit land. It is pleaded that land of defendant is adjoining to the suit land and defendant had started digging the suit land and has uprooted the boundary and is threatening to raise forcible construction over the suit land and also threatened to dispossess the plaintiffs from the suit land. It is pleaded that plaintiffs requested the defendant on a number of time not to raise construction over the suit land but of no use. Prayer for decree the suit as mentioned in relief clause sought. 3. Per contra written statement filed on behalf of defendant pleaded therein that plaintiffs have no cause of action and further pleaded that other co-sharers are necessary parties. It is pleaded that defendant wanted to raise retaining wall in order to protect his immovable property and plaintiffs are creating interference over the land of the defendant. It is pleaded that defendant has already filed suit against the plaintiffs and present suit is a counter blast to that suit. It is pleaded that defendant is not raising any construction over the suit land. It is also pleaded that defendant is not interfering over the suit land in any manner and suit has been filed with a malafide intention. Prayer for dismissal of suit sought. 4. Plaintiff filed replication and reiterated his pleadings pleaded in the plaint. As per the pleadings of parties learned trial Court framed following issues on dated 15.6.2002 :- 1. Whether the plaintiff is entitled for the relief of fixation of boundaries by demarcation as alleged? …OPP 2. Whether the plaintiff is entitled for the decree of permanent prohibitory injunction as prayed for? …OPP 3. Whether the plaintiff is entitled for the decree of possession by demolition as prayed? OPP 4. Whether the plaintiff has no cause of action as alleged?....OPD 5. Whether the suit is bad for non-joinder of necessary parties as alleged? …..OPD 6. Relief. 5. On dated 14.6.2007 learned trial Court dismissed the Civil Suit No. 354 of 1998. …OPP 3. Whether the plaintiff is entitled for the decree of possession by demolition as prayed? OPP 4. Whether the plaintiff has no cause of action as alleged?....OPD 5. Whether the suit is bad for non-joinder of necessary parties as alleged? …..OPD 6. Relief. 5. On dated 14.6.2007 learned trial Court dismissed the Civil Suit No. 354 of 1998. Feeling aggrieved against the judgment and decree passed by learned trial Court Balwant Singh deceased through his legal representatives filed Civil Appeal No. 97 of 2007 titled Balwant Singh deceased through his LRs Pushpa Devi and others vs. Rattan Chand before learned District Judge Hamirpur and on dated 2.3.2009 learned District Judge Hamirpur accepted the appeal without costs and set aside the impugned judgment and decree passed by learned trial Court and remanded the case to learned trial Court for fresh disposal by getting local investigation done under Order 26 Rule 9 of Code of Civil Procedure through the Court and then to dispose of the suit in accordance with law. Thereafter learned trial Court on dated 10.3.2010 decreed the suit filed by plaintiffs for possession of Khasra No. 599/1 measuring 0 canal 5 marlas as per report Ext.PZ-2 and tatima Ext.DW4/A by way of demolition of structure existed upon the suit land at costs and risk of the defendant. Learned trial Court also granted consequential relief of permanent prohibitory injunction in favour of the plaintiffs and against the defendant and defendant was restrained from raising any construction and from changing the nature of suit land and from interfering over the suit land in any manner. 6. Feeling aggrieved against judgment and decree passed by learned trial Court dated 10.3.2010 Rattan Chand filed Civil Appeal No. 55 of 2010 titled Rattan Chand vs. Balwant Singh deceased through his LRs Pushpa Devi and others and same was disposed by learned District Judge Hamirpur on dated 5.2.2013 and dismissed the appeal filed by appellant Rattan Chand. 7. Feeling aggrieved by judgments and decrees passed by learned trial Court and learned first Appellate Court appellant Rattan Chand filed present Regular Second Appeal and Hon’ble High Court admitted present appeal on the following substantial questions of law on dated 26.2.2014 :- 1. Whether the learned Court below while passing the impugned judgment and decree was right in disregarding the demarcation report DW1/A which has been duly proved by the Appellant in accordance with law? 2. Whether the learned Court below while passing the impugned judgment and decree was right in disregarding the demarcation report DW1/A which has been duly proved by the Appellant in accordance with law? 2. Whether the learned Court below while affirming the judgment and decree passed by learned trial Court was right in relying upon the demarcation report Ext.PZ/2 despite the fact that the said demarcation has been conducted in utter violation of the norms fixed for conducting the demarcation? 3. Whether the impugned judgment and decree are sustainable in the eyes of law being based on a demarcation report which is vitiated on account of non-adherence to the mandatory provisions of law governing the conduct of demarcation? 8. Court heard learned Advocates appearing on behalf of the parties and also perused the record carefully. Evidence adduced by parties 9. PW1 Balwant Singh has stated that he is owner of suit land along with his brothers. He has stated that area of suit land is 2 canals 4 marlas and he has stated that defendant has no legal right title or interest in and over the suit land. He has stated that in the year 1998 defendant started digging the suit land. He has further stated that he requested the defendant not to dig the suit land but defendant did not accept his request and thereafter he filed the civil suit and obtained the ad-interim injunction. He has stated that despite ad-interim injunction defendant started construction of retaining wall, stairs, septic tank and bathroom. He has stated that Local Commissioner has demarcated the suit land and construction was found by defendant upon Khasra No. 599/1. He has stated that defendant agreed that he would exchange 5 marlas of encroachment with Khasra No. 604 but defendant did not give any land in exchange despite assurance. He has denied suggestion that plaintiff has obtained demarcation report in collusion with the concerned authorities. 9.1. PW2 Yog Raj has stated that he has seen the suit property and has further stated that land of defendant is adjoining to the land of plaintiff. He has stated that he was present at the time of demarcation. He has stated that 5 marlas of land was encroached by defendant by way of construction of retaining wall, septic tank and bathroom. He has stated that defendant agreed that he would give 5 marlas of land in exchange. He has stated that he was present at the time of demarcation. He has stated that 5 marlas of land was encroached by defendant by way of construction of retaining wall, septic tank and bathroom. He has stated that defendant agreed that he would give 5 marlas of land in exchange. He has denied suggestion that no compromise was executed between the plaintiff and defendant. 9.2 PW3 Ishwar Chand has stated that lands of parties adjoin to each other and he was present at the time of demarcation. He has stated that Local Commissioner took the statements of parties and further stated that it was found that defendant had encroached 5 marlas of land of plaintiff. He has denied suggestion that he was deposing falsely in Court. 9.3 PW4 Arvind Civil Ahalmad posted in Court No. 3 Hamirpur has tendered the record of file No. 413/98 titled Rattan Chand vs. Balwant Singh. 9.4 PW5 Laxmi Dutt has stated that he was appointed as Local Commissioner and he has submitted report Ext.PW5/A which is correct as per original record. He has stated that tatima is Ext.PW5/B, field book is Ext.PW5/C and statements of parties are Mark X and Y. He has stated that in his presence defendant did not agree to exchange the land. He has stated that he fixed the permanent points ABC from Khasra No. 560, 561 and 559/1. He has stated that he also demarcated Khasra Nos. 560, 561, 562, 563, 445, 1281/589, 1282/589, 559, 556 and 558. He has denied suggestion that he has not properly demarcated the land. He has stated that he has given the demarcation from Aks Musabi. He has denied suggestion that he did not record the statements of parties after demarcation. He has denied suggestion that he did not demarcate the land as per factual position. 9.5 DW1 Dev Raj has stated that on dated 24.11.1998 he went to demarcate the land in case titled Balwant Singh vs. Rattan Chand. He has stated that he demarcated the immovable land in presence of parties and also fixed the boundaries. He has stated that there is road between the lands of parties. 9.5 DW1 Dev Raj has stated that on dated 24.11.1998 he went to demarcate the land in case titled Balwant Singh vs. Rattan Chand. He has stated that he demarcated the immovable land in presence of parties and also fixed the boundaries. He has stated that there is road between the lands of parties. He has stated that demarcation report is Ext.DW1/A and copy of Aks Sajra is Ext.DW1/B and copies of statements of parties are Ext.DW1/C and copies of statements of witnesses are Ext.DW1/D. He has stated that he had given the demarcation as per factual position. He has denied suggestion that Balwant Singh was not satisfied with demarcation. He has denied suggestion that he did not conduct demarcation as per demarcation Rules. 9.6 DW2 Besar Chand has stated that he is Pardhan of Gram Panchayat since 17 years and parties are known to him. He has stated that he has seen the suit property. He has stated that a road passes through the lands of parties and further stated that house of Rattan Chand was constructed in the year 1971-72 and he has stated that bathroom and latrine were constructed in the year 1987-88. He has stated that thereafter defendant did not construct anything and further stated that he was present at the time of demarcation. He has also stated that as per demarcation no encroachment on the part of defendant was found. 9.7 DW3 Rattan Chand has stated that he did not raise any construction over the land owned by plaintiffs. He has stated that there is road between the land of plaintiffs and defendant. He has stated that he had old house and further stated that in the year 1988 he had constructed latrine and bathroom. He has stated that in the year 1998 he took the demarcation. He has admitted that he retired as Superintendent from Education Department. He has stated that he served for 37 years and 11 months. 9.8 DW4 Dhyan Singh Kanungo DC Office Hamirpur has stated that he has demarcated the land from triangle system and he also fixed ABC points. He has stated that permanent points were fixed from Khasra No. 555, 589 and 596. He has stated that Khasra numbers of suit land were 598 and 599. He has stated that he demarcated the immovable land from Musabi. He has stated that permanent points were fixed from Khasra No. 555, 589 and 596. He has stated that Khasra numbers of suit land were 598 and 599. He has stated that he demarcated the immovable land from Musabi. He has denied suggestion that he did not properly demarcate the suit land. He has denied suggestion that he did not demarcate the suit land as per instructions of Financial Commissioner. He has stated that he issued notice to the parties Ext.PX on dated 9.6.2006 and recorded the statements of parties Ext.PY. He has stated that copy of Musabi of consolidation for the year 1961-62 is Ext.PZ and copy of musabi of settlement is Ext.PZ-1. He has stated that his report is Ext.PZ-2 which is correct as per original record. Findings upon Substantial Question of law No.1 framed by Hon’ble High Court:- 10. Submission of learned Advocate appearing on behalf of the appellant that learned trial Court and learned First Appellate Court were not right in disregarding demarcation report Ext.DW1/A dated 24.11.1998 which was proved by appellant in accordance with law is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused demarcation report Ext.DW1/A placed on record. Demarcation vide report Ext.DW1/A was conducted on dated 24.11.1998 by Dev Raj Sharma Tehsildar (Retired). Dev Raj Sharma Tehsildar (Retired) conducted the demarcation report Ext.DW1/A on dated 24.11.1998 on the basis of Aks Sajra Ext.DW1/B placed on record. It is well settled law that demarcation should be conducted through Aks Musabi issued by office of District Collector for demarcation purpose. It is well settled law that any demarcation from Aks Sajra Kishatwar is not proper demarcation because Aks Sajra is prepared from Latha kept in Tehsil. It is well settled law that copy of Aks Musabi is kept in office of District Collector. It was held in case reported in 1996 Shimla Law Cases page 314 titled State of H.P. vs. Laxmi Nand that demarcation from Latha is not permissible. It was further held that in boundary dispute while demarcation following instructions should be followed. (1) If a boundary is in dispute 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 the square system he should reconstruct the square in which the disputed land lies. (1) If a boundary is in dispute 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 the square system he 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 out 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 from line of a square and then with a chain and cross staff mark put the position and distance of those points. Thus he could set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available he should then find three points from different sides of the place in dispute as near to it as he could. He would 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 distance when thus compared agree in all cases he could then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. (II) In the report to be submitted by him, the Kanungo must explain in detail how he made his measurement. He should submit a copy of the relevant portion of the current settlement field map of the village showing the fields if any with their dimensions (Karu Kan) of which he took measurement situated between the points mentioned in Instruction above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo’s proceedings. (III) If a question is raised as to the position of the disputed boundary according to the field map of the settlement proceeding of 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. II. (III) If a question is raised as to the position of the disputed boundary according to the field map of the settlement proceeding of 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. II. (iv) On the same copy should be shown also the limits of existing possession. (v) 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 Field Kanungo’s report with an explanation of the cause of increase or decrease if any discovered. (vi) When taking his measurement the 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 matter 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. It constantly happens that when the report comes before the Court one or other party impugns 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. (vii) The above instructions should be followed by Revenue Officers or Field Kaungoes whenever they are appointed by a Civil Court Commissioners in suits involved disputed boundaries. There is no recital in document Ext.DW1/B that Aks Sajra was prepared from Aks Musabi. Dev Raj Sharma has given the demarcation on the basis of Aks Sajra prepared from Latha. Hence it is held that demarcation report Ext.DW1/A placed on record could not be relied in view of Ruling cited supra. Hence point No.1 of substantial questions of law is decided against the appellant. Findings upon Substantial question of law No. 2 framed by Hon’ble High Court. 11. Hence it is held that demarcation report Ext.DW1/A placed on record could not be relied in view of Ruling cited supra. Hence point No.1 of substantial questions of law is decided against the appellant. Findings upon Substantial question of law No. 2 framed by Hon’ble High Court. 11. Submission of learned Advocate appearing on behalf of appellant that learned trial Court has illegally relied upon demarcation report Ext.PZ-2 given by Dhyan Singh Sadar Kanungo posted in DC Office is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that after remand learned trial Court appointed Tehsildar Hamirpur as Local Commissioner. It is also proved on record that thereafter Local Commissioner Hamirpur has refused to carry out the demarcation and thereafter learned trial Court appointed Dhyan Singh Sadar Kanungo as Local Commissioner to carry out the demarcation as directed by learned District Judge Hamirpur in Civil Appeal No. 97 of 2007 titled Balwant Singh deceased through LRs Pushpa Devi and others vs. Rattan Chand. It is proved on record that thereafter Dhyan Singh Sadar Kanungo demarcated the suit land and submitted his local commissioner report Ext.PZ-2. Court has carefully perused the report submitted by Dhyan Singh Sadar Kanungo Hamirpur. Dhyan Singh Sadar Kanungo Local Commissioner recorded the statements of parties Ext.PX and Ext.PY and also perused the copy of Aks Musabi issued from the office of District Collector Hamipur and also submitted the Field Book Ext.DW4/A placed on record. It is proved on record that Dhyan Singh has conducted the demarcation from Aks Musabi after fixing permanent points and had also prepared field book strictly in accordance with law. Shri Dhyam Singh has specifically mentioned that Shri Rattan Chand appellant has encroached upon 05 marlas of land comprised in Khasra No. 599/1 by way of construction of retaining wall, bathroom, stairs and gardening as mentioned in field book Ext.DW4/A placed on record. Hence it is held that learned trial Court and learned First Appellate Court have not committed any illegality by way of relying upon report Ext.PZ-2 submitted by Dhyan Singh Sadar Kanungo. Point No. 2 of substantial question of law is decided against the appellant. Findings upon Substantial question of law No. 3 framed by Hon’ble High Court:- 12. Hence it is held that learned trial Court and learned First Appellate Court have not committed any illegality by way of relying upon report Ext.PZ-2 submitted by Dhyan Singh Sadar Kanungo. Point No. 2 of substantial question of law is decided against the appellant. Findings upon Substantial question of law No. 3 framed by Hon’ble High Court:- 12. Submission of learned Advocate appearing on behalf of the appellant that impugned judgments and decree passed by learned trial Court and affirmed by learned first Appellate Court are vitiated on account of non-adherence to the mandatory provisions of law governing the conduct of demarcation is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that Dhyan Singh Sadar Kanungo had conducted the demarcation from Aks Musabi by fixing permanent points and it is also proved on record that local Commissioner Dhyan Singh Sadar Kanungo had also prepared field book strictly in accordance with law and it is held that Dhyan Singh Sadar Kanungo had complied the mandatory provisions of law governing the conduct of demarcation properly. Dhyan Singh appeared in witness box and proved demarcation report in accordance with law. It is held that learned trial Court has rightly rejected the objection of appellant filed upon local commissioner report submitted by Dhyan Singh Sadar Kanungo. Hence point No. 3 of substantial question of law framed by Hon’ble High Court of H.P. is decided against the appellant. 13. In view of above stated facts appeal is dismissed. Judgment and decree passed by learned trial Court in Civil Suit No. 354 of 1998 decided on dated 10.3.2010 and judgment and decree passed by learned District Judge Hamirpur in Civil Appeal No. 55 of 2010 decided on dated 5.2.2013 are affirmed. Parties are left to bear their own costs. Record of learned trial Court and learned first Appellate Court be sent back forthwith along with certified copy of this judgment. Appeal stands disposed of accordingly. All pending miscellaneous application(s), if any, also stands disposed of.