JUDGMENT Tarlok Singh Chauhan, Judge (Oral). This regular second appeal is directed against the judgement and decree dated 27.6.2011 passed by learned District Judge, Fast Track Court, Chamba, whereby he affirmed the judgement and decree dated 15.1.2010 passed by the learned Civil Judge (Sr. Divn.), Chamba. 2. The plaintiff- appellant filed a suit for permanent prohibitory and mandatory injunction and possession that he is owner in possession of land comprised in Khata Khatoni No. 88/150, Khasra No. 863, measuring 1-6 bighas situated in Mohal Mugla, Pargna Panjla Tehsil and District Chamba, H.P, whereas the defendant- respondent No.1 is owner of land comprised in khata Khatoni No. 505/609, khasra No. 1949/1775, measuring 0-3-8 bighas situated at Mouza Mugla, Tehsil and District Chamba. It is pleaded that khasra No. 1949/1 775 is min khasra and having been carved out from khasra No. 856 and that the suit land and the land of defendant- respondent No. 1 abut each other but without getting the boundaries settled, the respondents- defendants No. 1 and 2 started construction work and thereby encroached upon the suit land and though the respondent No. 1 is recorded owner of khasra No. 1949/1775 but the possession is of respondent No. 2. It is also pleaded that defendants- respondents have forcibly and illegally raised construction of their house by making encroachment in an area measuring 00-00-08 bighas of suit land during the pendency of the suit which is evident from the copy of demarcation report dated 28.2.2005 and, therefore, the appellant- plaintiff is entitled to the possession by demolition of illegal construction. It is also averred that defendants were requested time and again to get the boundaries settled and not to encroach upon the suit land and notice to this effect was served upon respondent No. 2, but respondents continued with construction. It is lastly pleaded that cause of action arose in favour of the plaintiff during the month of March 2002, when the respondents started construction on the suit land and failed to accede to the request. 3. It is lastly pleaded that cause of action arose in favour of the plaintiff during the month of March 2002, when the respondents started construction on the suit land and failed to accede to the request. 3. The respondent No.2 contested the suit by filing written statement wherein preliminary objections inter-alia that suit is not maintainable, construction was complete in every respect before filing the suit, appellant has no locus standi to file the suit as construction has been raised by respondent No. 2 upon his own land and that the plaintiff is estopped from filing the suit were raised. On merits, it is pleaded that defendant No. 2 purchased the land from respondent No. 1 and thereafter, raised construction of his house over khasra No. 1949/1775 which was completed in the year 2001. It is denied that any encroachment has been made in the suit land. It is further pleaded that demarcation had not been carried out legally as per instructions laid down in H.P. Land Record Manual. It is denied that any notice was sent to the respondent No. 2 and any cause of action had accrued. Replication to the written statement controverting the contents thereof and reasserting those made in the plaint was filed. On the pleadings of the parties, the following issues were framed by the trial court on 9.10.2006:- 1. Whether plaintiff is entitled for decree of permanent prohibitory injunction restraining defendants from raising any construction or encroaching in any manner upon the suit land as prayed for? OPP2. Whether plaintiff is entitled for decree of mandatory injunction as prayed for? OPP 3. Whether the plaintiff is entitled for decree of possession and defendants had encroached upon the portion of suit land measuring 00-00-08 Bighas comprised in Khatta Khatoni No. 88/150, Khasra No. 863 situated in Mouza Mugla, Pargna Panjla, Tehsil and District Chamba during the pendency of the suit as alleged? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the construction has been completed in all respects prior to the filing of this suit? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the plaintiff is bound by his own act and conduct to file the present suit? OPD. 8. Whether defendants have not made any encroachment as alleged? OPD.9.Relief. Whether the construction has been completed in all respects prior to the filing of this suit? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the plaintiff is bound by his own act and conduct to file the present suit? OPD. 8. Whether defendants have not made any encroachment as alleged? OPD.9.Relief. 4.I have heard the learned counsel for the parties and have gone through the record. 5.After recording the evidence and hearing the arguments, the learned trial court vide its judgement dated 15.1.2010 was pleased to dismissed the suit. The appeal preferred by the appellant before the learned lower appellate court also met the same fate and it is these two judgements and decrees, which have now been challenged by the plaintiff- appellant before this Court. 6. Sh. Naveen Kumar Bhardwaj, learned counsel for the appellant has argued that the learned courts below have failed to take into consideration the statement of PW 5 Balbir Singh, Kanungo, as also the documents exhibited in his evidence as Ex. PW 5/B and Ex. PW 5/C respectively. From the record, I find that PW 5 Balbir Singh is a retired revenue official, who is supposed to have conducted the demarcation and submitted his report Ex. PW 5/B alongwith Tatima Ex. PW 5/C. The learned trial court has discussed in detail the evidence of the plaintiff, particularly PW 5 and has also given reasons for discarding from consideration Ex. PW 5/B and Ex. PW5/C. This would be clear from the following findings of the learned trial court:- “In the present case in hand, the deposition of PW 1 to PW 3 are not material, but the entire case of plaintiff depends upon the deposition of Balbir Singh Kanungo PW 5 who alleged to have demarcated the suit land and adjoining land of the defendant and prepared the encroachment Tatima. The entire case of plaintiff depends upon the said report which adduced in the deposition of Balbir Singh, PW 5 as demarcation Report Ex. PW 5/B and Tatima Ex. PW 5/C. In cross examination he admitted that suit land is cultivable land and plaintiff did not raise any structure on it. He, in cross examination admitted that adjoining to the suit land, there are khasra Numbers 864, 1952/1775 & 1949/1775. PW 5/B and Tatima Ex. PW 5/C. In cross examination he admitted that suit land is cultivable land and plaintiff did not raise any structure on it. He, in cross examination admitted that adjoining to the suit land, there are khasra Numbers 864, 1952/1775 & 1949/1775. He admitted that as per Masabi which relied at the time of demarcation, khasra No. 863 is adjoining to khasra No. 856, 831, 864 and 857. Self stated that said khasra numbers has been divided khasra Nos. parts after its division from main khasra number. He admitted in cross examination that during demarcation he found two permanent points emerging from that khasra No. 0864 and 1952/1775. By this cross examination it is held that said revenue official Balbir Singh has conducted the demarcation on the basis of two permanent points instead of demarcation by rectangular or triangular means. He admitted that he did not obtain the statement of parties to the effect that parties admitted and agreed to said permanent points. He admitted that he did not issue the notice to other owner of the adjoining land to the suit land. He admitted that once original khasra number sub divided into any khasra numbers, their description would change. He admitted that khasra No. 1952/1775 (suit land) is not described in the Musabi which relied upon in demarcation and he admitted that he can not tell from which khasra number said suit land encraved from. By these admissions of the said revenue official, it appears that he has not demarcated the land in accordance with H.P. land record. In cross examination PW 5 stated that land of defendant is adjoining to the suit land towards its western boundary and admitted that the house stand constructed whereas report Ex. PW 5/B and its Tatima Ex. PW 5/C does not revealed the fact that house stand constructed and the land of defendant is towards the western side, but stated towards the side of South West. In the aforesaid facts and circumstances, I would like to refer the citation of our own Hon’ble High Court in case titled as Salig Ram and Ors. Vs. PW 5/C does not revealed the fact that house stand constructed and the land of defendant is towards the western side, but stated towards the side of South West. In the aforesaid facts and circumstances, I would like to refer the citation of our own Hon’ble High Court in case titled as Salig Ram and Ors. Vs. Ram Lal and ors, reported in Latest HLJ 2008 (HP) 484, wherein Hon’ble High Court held as under:- ‘Civil Procedure Code, 1908, Section 100 Sub Section 5 read with Himachal Pradesh Land Revenue Act- Demarcation of land- Boundary Dispute- Procedure to be adopted- The demarcating officer has to locate three permanent points on different sides of the area sought to be demarcated- Such points not fixed. There is also no reference of Musabi or Momi in the Demarcation Report- Statements of interested parties were also not recorded so as to show that they agreed to the fixing of such points- Demarcation Report not carried out as per law laid down by this Court. Not a legal piece of evidence and could nt have been relied upon to decree the suit- impugned judgement and decree set aside- Appeal allowed.’ In the present case, this citation is fully applicable being reason it is admitted fact that there was boundary dispute between the parties, therefore, it is upon revenue official to demarcate the suit land after locating thee permanent points on different sides of area. The witness Balabir Singh Kanungo failed to locate three permanent points before commencing demarcation report. He also failed to demarcate the adjoining land. He failed to record the statement of parties that they had agreed to the said permanent points, therefore, it is held that demarcation report was not carried out as per law laid down, hence said demarcation report is not legal piece of evidence and could have been relied upon by this court to give the relief of decree for possession or injunction. Applying the ratio of aforesaid citation, which is fully applicable in the present case, it is held that plaintiff has failed to prove his case for possession on defective demarcation report and Tatima which adduced in the evidence.....” 7. Similarly the learned lower appellate court has also discussed in detail the statement of PW 5 Balabir Singh, demarcation report Ex. PW 5/B and Tatima Ex. Similarly the learned lower appellate court has also discussed in detail the statement of PW 5 Balabir Singh, demarcation report Ex. PW 5/B and Tatima Ex. PW 5/C, which would be clear from the perusal of paragraph-15 of the judgement, which reads thus:- “Much reliance has been placed by the learned counsel for the appellant in the demarcation report Ex. PW 5/B and the Tatima Ex. PW 5/C claiming that a legal and valid demarcation was conducted by PW 5 Balbir Singh, Kanungo but the learned trial Court has wrongly rejected the same that the same is not legal piece of evidence. Plaintiff examined Kanungo Balbir Singh as PW 5 who in his affidavit Ex. PW 5/A stated that in compliance of order of Tehsildar dated 29.11.2004, he carried out demarcation of Khasra No. 863 (suit land) on 28.2.2005 in the presence of Anil Joshi and during the demarcation, it was gathered that the defendant No. 2 had encroached land measuring 0-0-8 Biswansi of suit land which was depicted by him as Khasra No. 863/1. He has proved on record demarcation report Ex. PW 5/B and Tatima Ex. PW 5/C. He has successfully been impeached in the cross-examination wherein it is admitted that Khasra No. 863 is Barani Abal and cultivable and no construction was raised thereon and also admitted that no demarcation can be carried out when the crop is standing. Though stated that if the crop is small, such demarcation is permissible but as per him, the demarcation was carried out on 28.2.2005. During February, the Ravi crop is almost half grown. If so, it was not possible for him to make correct and proper demarcation at that time when the crop was standing. No statements of any witnesses to this effect were recorded by him that there were no standing crops or the crops were small. It is admitted that Khasra Nos. 864, 1952/177 and 1949/1775 were adjoining to Khasra No. 863 (suit land) and that in the copy of Musabi was depicting khasra Nos. 831, 864, 856, 857 as adjoining numbers and that he had drawn two pucca points from khasra Nos. 864 and 1952/1775. It is admitted that Khasra Nos. 864, 1952/177 and 1949/1775 were adjoining to Khasra No. 863 (suit land) and that in the copy of Musabi was depicting khasra Nos. 831, 864, 856, 857 as adjoining numbers and that he had drawn two pucca points from khasra Nos. 864 and 1952/1775. However, stated that he did not record statements of parties for fixing pucca points and that he did not issue notices to the adjoining owners about the demarcation despite the fact that PW 2 admitted that his land was adjacent to suit land. It is admitted that he did not ascertain the original Khasra No. of Khasra No. 1952/1775 and that khasra No. 1952/1775 was not in the Musabi. If so, Khasra No. 1952/1775 was certainly not a pucca point, as such, the report is not conclusive and proper. He stated that a house has been constructed in Khasra No. 1952/1775. He also stated that he carried out the demarcation by following triangular method but his report to this effect is totally silent. Once the defendant No. 2 had completed his construction, certainly triangular method was required to be followed but to utter surprise no such mention was made in the report and in the absence of requisite detail, report Ex. P/W 5/B is improper and not a valid report. Neither his version nor his report show that he had ascertained three permanent points on three different sides of area sought to be demarcated or got said points admitted/ ascertained/ verified from the adjoining owners that said points were undisputed from the last settlement. His version also does not suggest that he had chained said points on the spot and compared the result with a distance given as per scale in the Musabi which was with him. He did not record the statements of interested parties much less the defendant No. 2 who has claimed that he had shown his dissatisfaction to the demarcation before settling the permanent points. It is held in latest HLJ 2008 (HP) 484 Salig Ram and ors. Versus Ram Lal and ors. He did not record the statements of interested parties much less the defendant No. 2 who has claimed that he had shown his dissatisfaction to the demarcation before settling the permanent points. It is held in latest HLJ 2008 (HP) 484 Salig Ram and ors. Versus Ram Lal and ors. that the demarcating officer is required to locate three permanent points on different sides of area sought to be demarcated and if such points are not fixed and detail of Musabi or Momi is not given in the demarcation report and the statements of the interested parties are not recorded on the agreed pucca points, demarcation report cannot be said to be carried as per law and can not be treated as legal piece of evidence. In the instant case, PW 5 has failed to follow the procedure and carry out the demarcation as per law. Therefore, the demarcation report Ex. PW 5/B and Tatima Ex. PW 5/C are not legal and proper and can not be treated as legal piece of evidence and similarly the version of PW 5 can not be believed that any encroachment was found in the suit land and the ratio laid down aforesaid is applicable to the facts and circumstances of the case.” 8.The findings recorded by the learned trial court as also appellate court do not suffer from any error and cannot be termed to be even otherwise perverse. The aforesaid findings recorded by the learned courts below are pure findings of fact, which cannot be interfered with by this court in exercise of its power under section 100 of the Code of Civil Procedure. 9. In Gurdev Kaur and others vs. Kaki and others (2007) 1 SCC 546 the Hon’ble Supreme Court after making detailed reference to the historical perspective, legislative background in the comprehensive Fifty Fourth Report of Law Commission of India submitted to the Government of India in 1973 giving historical background regarding ambit and scope of section 100 CPC, the scope of section 100 CPC prior to the 1976 amendment and thereafter making a detailed reference to the scope of interference with reference to the cases decided by the Hon’ble Supreme Court after 1976 Amendment, summed up its findings, as follows:- “68. The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law. 69. The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. 70. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C. P. C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i)The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question. 71. 71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C. P. C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. 72. When Section 100 C. P. C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law. 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100.” 10.Since no question of law muchless substantial question of law arises for decision, the appeal is dismissed leaving the parties to bear their own costs.