JUDGMENT Dharam Chand Chaudhary, Judge. This appeal is directed against the judgment and decree passed on 08.06.2001 by learned District Judge, Shimla in Civil Appeal No. 157-S/13 of 1998, dismissing thereby the appeal and affirming the judgment and decree passed by learned Subordinate Judge 1st Class, Court No.1, Shimla in Civil Suit No. 64/1 of 96/90. 2. The appeal has been admitted on the following substantial questions of law: 3) Whether the findings recorded by ld. District Judge are self contradictory and contrary to the mandate, as contained in High Court Rules and orders in connection with the settlement of boundary dispute and regarding demarcation of the land by Revenue Officer in the Rank of A.C. II Grade. 4) Whether the principle of estoppel has wrongly been invoked by both the courts below and appellant having based upon his case on the basis of title can claim removal of encroachment from his land. 3. The appellant (hereinafter referred to as the ‘plaintiff’) and respondent (hereinafter referred to as the ‘defendant’) are neighbours. Plaintiff claims himself to be the owner in possession of land bearing 272/228/256 below H.P. Secretariat, Shimla (east). The defendant allegedly raised construction of a house namely ‘Cosmic Lodge’ unauthorizedly over the land bearing Khasra No. 272/228. He encroached upon the land of the plaintiff to an extent of 157.50 Sq. feet. He encroached upon further land measuring 31.50 Sq. feet of the plaintiff by raising construction of stairs of his house. The plaintiff came to know about the encroachment so made, consequent upon he got the land demarcated from the Assistant Collector 2nd Grade (Settlement). He also got the demarcation of the land conducted from Shri S.P. Kapoor, a registered valuer. The plaintiff has, therefore, sought the decree mandatory in nature, directing the defendant to remove the construction, he raised over the land of the plaintiff and hand over the vacant possession thereof to him. 4. The defendant on entering appearance, however, has contested the suit. He raised preliminary objections such as suit is time barred, not properly valued for the purposes of Court fee and jurisdiction. The plaintiff is estopped to file the same on account of his own act, conduct and deeds and also there exists no enforceable cause of action in his favour and against the defendant. He raised preliminary objections such as suit is time barred, not properly valued for the purposes of Court fee and jurisdiction. The plaintiff is estopped to file the same on account of his own act, conduct and deeds and also there exists no enforceable cause of action in his favour and against the defendant. On merits, it is admitted that the plaintiff is owner of land bearing Khasra No. 228/272 measuring two biswas, adjoining to his plot. It is, however, denied that he has constructed his house over the plot belonging to the plaintiff bearing Khasra No. 272/228 or any portion thereof and rather constructed his house over his own plot bearing Khasra No. 274/228, after the plan for construction thereof was sanctioned by the Municipal Corporation. He completed construction of one storey of his house in the year 1981 and that of second storey in the year 1982. The slabs of third and fourth storey were laid in the year 1984-85. The plaintiff never raised any objection to the construction so raised by him. It has further been submitted that there being no cause of action having arisen to the plaintiff to institute the suit, the same, therefore, has been sought to be dismissed. 5. In replication the plaintiff has denied the contentions to the contrary as wrong and reiterated his case, as set out in the plaint. 6. On the pleadings of the parties, learned trial Court has framed the following issues: 1. Whether the defendant has raised construction over the pot of the plaintiff, if so, to what effect? OPP. 2. Whether the suit is barred by time? OPD. 3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 4. Whether the plaintiff is estopped to file this suit by his act and conduct? OPD. 5. Relief. 7. Parties were put to trial on all the issues hereinabove. They produced oral as well documentary evidence. On analyzing the same and affording due opportunity of being heard to the parties, learned trial Judge has arrived at a conclusion that plaintiff has miserably failed to prove the encroachment having been made by the defendant over the land belonging to him while raising construction of his house and as such decided issue No. 1 against the plaintiff. On analyzing the same and affording due opportunity of being heard to the parties, learned trial Judge has arrived at a conclusion that plaintiff has miserably failed to prove the encroachment having been made by the defendant over the land belonging to him while raising construction of his house and as such decided issue No. 1 against the plaintiff. Although, findings on issue No. 2 are vague as from the perusal thereof, it cannot be made out as to in whose favour, the issue of limitation has been answered, yet the crux seems to be that this issue has been answered against the plaintiff. While issue No. 4 has also been answered against the plaintiff, because learned trial Court has arrived at a conclusion that the plaintiff never objected to the construction raised by the defendant and as such he is now estopped from filing the suit, issue No. 3 which pertains to valuation for the purposes of Court fee and jurisdiction has, however, been answered against the plaintiff, of course without assigning any reason. As a cumulative effect of the findings recorded on all the issues, the suit was dismissed. 7. The plaintiff being aggrieved and dis-satisfied by the impugned judgment and decree had assailed the legality and validity thereof before the lower Appellate Court. The appeal, however, met the same fate, being dismissed vide judgment and decree under challenge in the present appeal. 8. It has been claimed in the grounds of appeal that all the issues arising out of the pleadings of the parties have not been framed and the cogent and reliable evidence suggesting that the defendant had made encroachment over the land of the plaintiff has not been appreciated in its right perspective. The plaintiff being owner of the land in question could have filed the suit at any point of time and as such, there cannot be any estoppel against the provisions of law. The evidence i.e. demarcation report Ext. PW2/B and the statement of Assistant Collector 2nd Grade, PW-2 Sh. Dila Ram produced by the plaintiff, amply demonstrates that the defendant had made encroachment to an extent of 8 biswansi over the land of the plaintiff. The evidence i.e. demarcation report Ext. PW2/B and the statement of Assistant Collector 2nd Grade, PW-2 Sh. Dila Ram produced by the plaintiff, amply demonstrates that the defendant had made encroachment to an extent of 8 biswansi over the land of the plaintiff. The findings that demarcation being not conducted as per the procedure and as such not legally admissible are stated to be contrary to the provisions contained under the High Court Rules and Orders, which provides for appointment of a Local Commissioner to resolve the boundary dispute, therefore, the Court below should have appointed the Local Commissioner in order to do substantial justice to the parties and sought the report. The findings that even jamabandi of the land in dispute has not been produced on record are stated to be contrary to the record, for the reason that the copy of ‘Misal Hakiyat Bandobast Jadid’ Ext. P-X has been produced in evidence by the plaintiff and duly proved. It has, therefore, been submitted that findings being not based upon the oral as well as documentary evidence available on record are perverse and as such, the impugned judgment being not legally and factually sustainable should be quashed. 9. Shri G.D. Verma, learned Senior Counsel during the course of arguments mainly emphasized that the plaintiff before filing the suit got the land demarcated and filed the demarcation report and also tatima along with the plaint, in support of his case. In case the demarcation was found to be not conducted in accordance with the procedure, both the Courts below were under an obligation to appoint an expert as a Local Commissioner and sought his report with respect to encroachment, if any, made by the defendant or not. It has also been pointed out that the present being not a case of boundary dispute with the Government, there was no requirement of demarcation of the land by the Assistant Collector 1st Grade. 10. On the other hand, learned counsel representing the defendant has vehemently argued that the plaintiff has miserably failed to clearly indicate the dimension of the land allegedly encroached upon by the defendant. Even its khasra numbers have not been mentioned in the plaint. The suit is time barred also and according to learned counsel, the findings on issue No. 2 go against the plaintiff. Even its khasra numbers have not been mentioned in the plaint. The suit is time barred also and according to learned counsel, the findings on issue No. 2 go against the plaintiff. It has also been pointed out that keeping in view that the defendant has started construction of the house from the year 1981 to 198485 and the plaintiff never raised any objection to the effect that he has raised construction over any portion of the land belonging to the plaintiff, he is now estopped from filing the suit and the findings to this effect have also been rightly recorded against him on issue No. 4 by both the Courts below. It has also been pointed out that even suit has not been properly valued for the purposes of Court fee and jurisdiction. Being so, it has been urged that even if the demarcation report Ext. PW2/B and tatima Ext. PW2/C are held to be legally admissible, no executable decree can be passed in the suit. 11. As noticed hereinabove, the pivotal question, around which the controversy revolves, is the admissibility of the demarcation report Ext. PW2/B of the land conducted by Assistant Collector 2nd Grade, Shri Dila Ram and also tatima Ext. PW2/C. Interestingly, in the plaint, there is not even a whisper so far as the dimension of the land allegedly encroached upon by the defendant, is concerned. The plaintiff is owner of the land bearing Khasra No. 272/228/256 not supported by any documentary evidence, because he has not cared to produce any evidence like jamabandi in this behalf. Of course, ‘Misal Hakiyat Bandobast Jadid’ Ext. P-X has been produced in evidence and the same depicts five old Khasras numbered as 272/288, having different area there under, however, it cannot be inferred by any stretch of imagination from this document as to which khasra number, out of these five Khasras pertains to disputed land, allegedly encroached by the defendant. 12. If coming to tatima Ext. PW2/C, the land allegedly encroached upon by the defendant has been denoted by Khasra No. 272/228/20 measuring 8 biswansi. There are, however, neither any pleadings nor any proof as to under what portion of the land of the plaintiff such encroached portion of the land of the plaintiff falls. 12. If coming to tatima Ext. PW2/C, the land allegedly encroached upon by the defendant has been denoted by Khasra No. 272/228/20 measuring 8 biswansi. There are, however, neither any pleadings nor any proof as to under what portion of the land of the plaintiff such encroached portion of the land of the plaintiff falls. On the other hand, in the plaint, the plaintiff nowhere claims encroachment of 8 biswansi land by the defendant, while raising the construction of his house on the adjoining plot and rather land measuring 157.50 Sq. feet. Besides, land measuring 31.50 Sq. feet is also stated to be encroached upon by the defendant below stairs to the floors of his house, he constructed on the spot. The demarcation report and tatima, however, are silent qua this aspect of the matter. There is thus variance in the pleadings and proof of the alleged encroachment. True it is that Punjab and Haryana High Court Rules, which reads as follow: “1. Local inquiry: In “Head-Shikni” suits and other suits of boundary disputes of land falling within the jurisdiction of Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways. (a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits, under Section 101(1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure; (b) by appointing a Local Commissioner; and (c) by the Court itself making a local inquiry.” provides for appointment of a Commission if the Court deems it proper in the given facts and circumstances of a case. The Commission can be appointed either on a joint application or on an application made by either party or suo-motu by the Court to do substantial justice to the parties. Learned trial Judge has non-suited the plaintiff on this score and held as under: “21. The main evidence led by the plaintiff to prove the alleged encroachment is the demarcation report. Learned trial Judge has non-suited the plaintiff on this score and held as under: “21. The main evidence led by the plaintiff to prove the alleged encroachment is the demarcation report. The correct procedure for demarcating the disputed boundary in such case have been laid down in Chapter 10 of H.P. Land Records Manual Revised Edition, 1992 which shows that if the map has been prepared during the last settlement or triangular system, then he has to fix three fixed recognizable point on different sides of the place in dispute. It is further provided that if the map has been prepared on square system, then the revenue officer should reconstruct the square in which disputed land lines. Thereafter in the report to be prepared it has to be shown as to how he measured the land. All the fields and points measured have also to be shown in the site plan within a frame of copy of Musabi. In the evidence as well as in the report, it is not shown by the Assistant Collector Second Grade as to on what system he had conducted the demarcation. It is not shown as to what three permanent points were taken around the disputed land by the Revenue Officer. It is further provided in para 10.10 of the Land Records Manual Chapter 10, that if there is government land adjoining private land then the demarcation has to be done by Revenue Officer not below, the rank of A.C first grade. It has been admitted by the plaintiff’s witnesses that there is government land adjoining to the suit land. Therefore, PW2, as per these instructions, was not competent to demarcate the land. 22. Further more, in view of the above discussion, it has to be held that plaintiff has not proved that defendant encroached the suit land by raising construction as alleged. 23. Since, the procedure laid down under the Chapter 10 of the Records Manual has not been followed, therefore, the demarcation report Ext. PW2/B can not prove the alleged encroachment. Further more, in Aks Musabi Ext. PW4/A, the suit land has not been depicted clearly which comprising Khasra No. 272/228 and this Musabi must be of some other land. Hence my findings on issue No. 1 is in negative against plaintiff, in favour of defendant.” 13. PW2/B can not prove the alleged encroachment. Further more, in Aks Musabi Ext. PW4/A, the suit land has not been depicted clearly which comprising Khasra No. 272/228 and this Musabi must be of some other land. Hence my findings on issue No. 1 is in negative against plaintiff, in favour of defendant.” 13. Learned Lower Appellate Court after re-appraisal of the evidence qua this aspect of the matter has also arrived at a conclusion that demarcation has not been conducted on this point in accordance with the Rules and Guidelines framed by the Financial Commissioner. Therefore, according to learned Lower Appellate Court, the plaintiff at least could have moved an application under Order 26 Rule 9 of the Code of Civil Procedure for seeking appointment of a Local Commissioner, preferably, a Revenue Officer, who could have carried out demarcation for ascertaining the land holdings owned by the parties. Of course, learned Lower Appellate Court or for that matter, learned trial Judge were competent to have appointed a Local Commissioner, had the demarcation been not got conducted as per procedure to do substantial justice to the parties. However, at the same time, the Court should refrain itself from creating evidence for the parties and when learned trial Judge had discarded the demarcation report and also tatima being not legally admissible, the plaintiff at least should have approached either the trial Court or at the most learned Lower Appellate Court for appointment of a Local Commissioner by filing an appropriate application. Why such a course has not been adopted remained unexplained. Otherwise also, when the dimensions of the land cannot be inferred from the plaint, even the jamabandi showing the plaintiff owner in possession of the land in dispute and that under which khasra numbers the same falls, has also not been produced in evidence. ‘Misal Hakiyat Bandobast Jadid’ Ext. P-X has been produced in evidence, however, not legally admissible, for the reasons cited hereinabove. Therefore, remand of the case to learned Lower Appellate Court or the trial Court for appointment of a Local Commissioner would not serve the ends of justice and rather a futile exercise, which amounts to fill up the lacuna(s) left in the case of the plaintiff. Therefore, remand of the case to learned Lower Appellate Court or the trial Court for appointment of a Local Commissioner would not serve the ends of justice and rather a futile exercise, which amounts to fill up the lacuna(s) left in the case of the plaintiff. Hence, the law laid down by a Co-ordinate Bench of this Court in Bali Ram versus Mela Ram and another, 2002 (3) Shim.L.C. 131 is not applicable to the facts and circumstances of the present case. For the same reasons the judgment delivered by a Co-ordinate Bench of this Court in Udai Ram and another versus Ram Lal, Latest HLJ 2008 (HP) 296 is also distinguishable in the given facts and circumstances of this case. The reliance on behalf of the plaintiff has also been placed on the judgment of the Apex Court in Haryana Waqf Board versus Shanti Sarup and others, (2008) 8 Supreme Court Cases 671. However, with due regard thereto, the law laid down therein has no application in the case in hand, for the reason that in the case supra, the plaintiff had filed an application for appointment of a Local Commissioner, not only before the trial Court but also before lower Appellate Court, however, declined. In that case, even there was no denial on behalf of the defendant to the allegations qua encroachment on the land by the plaintiff. The provisions contained under Section 107 of the Land Revenue Act and for that matter, the instructions and guidelines framed by the Financial Commissioner qua demarcation of the land are also of no help for the reasons recorded hereinabove. I, therefore, find the present a case where a direction qua appointment of Local Commissioner in accordance with the High Court Rules and orders would not serve the ends of justice and rather, in my considered view, would amount to fill up the lacuna(s) left in the case of the plaintiff. This appeal on substantial question of law No. 3, therefore, cannot succeed. 14. This appeal on substantial question of law No. 3, therefore, cannot succeed. 14. Even the plea of estoppel raised by the defendant carries substance for the reason that as per own statement of the plaintiff and the witnesses, he examined and also that of the defendant who has stepped in the witness box as DW-5 and DW-1 to DW-3, none else but the officials of the Municipal Corporation and Electricity Board, the defendant raised construction of one storey of the house in 1981, whereas, that of the second storey in the year 1982. Meaning thereby that in case he has encroached upon the land of the plaintiff or any portion thereof, he did so in the year 1981-82. No explanation is forth coming as to why he has not objected to the construction so raised over his land. No reasonable explanation has come on record to show that when he came to know about the encroachment so made by the defendant. Therefore, when the plaintiff allowed the defendant to go ahead with the construction on the spot, he is now estopped from filing the suit and as such, the Courts below have not committed any illegality or irregularity while holding so in the judgment under challenge before this Court. Thus, question of law No. 4 does not arise at all and is accordingly answered. 15. For all the reasons hereinabove, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s), if any.