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2016 DIGILAW 1254 (HP)

Rajinder Kumar v. Hira Lal

2016-07-01

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. The instant Regular Second Appeal is directed against the judgment and decree dated 16.9.2006, passed by learned District Judge, Hamirpur, H.P in Civil Appeal No.111 of 2005, titled Sh. Rattan Chand versus Sh. Hira Lal, whereby the judgment passed by learned Civil Judge (Jr. Division), Nadaun, District Hamirpur, HP in Civil Suit No.99 of 1999 has been set-aside. 2. Briefly stated facts necessary for adjudication of the case are that the appellants (hereinafter referred to as “plaintiff”) filed a suit for fixation of boundaries by way of demarcation of the land comprised in khata No. 14min, khatauni No.94min, khasra No. 1096, measuring 0-03-82 hectares situated in Tika Dangri, Tapaa Bhumpal, Tehsil Nadaun, District Hamirpur, HP (hereinafter referred to as “ Suit land”) and for permanent prohibitory injunction as well as for possession of the suit land by way of demolition of the superstructure, if any, raised by the respondent (hereinafter referred to as “Defendant”) during the pendency of the suit. Plaintiff in the plaint averred that he is the absolute owner in possession of the suit land as per Misal Haquiat for the year, 1996-97. It is averred that defendant is utter stranger to the suit land and he has no concern, whatsoever, with the suit land and land of the defendant is contiguous to his land. The plaintiffs averred that since the land of the parties is contiguous to each other and there always remains boundary dispute and same cannot be resolved until or unless revenue expert as Local Commissioner is appointed to demarcate the land of the parties and to fix boundaries thereon. The plaintiff submitted that the defendant is head-strong person and is hell-bent in digging the suit land by uprooting the boundaries forcibly with a view to raise construction over the suit land. The plaintiff specifically averred in the plaint that the cause of action accrued to him in the last week of September, 1999 when defendant threatened him that he will dispossess him from the suit land and raise construction over the suit land. In the aforesaid background, plaintiff by way of suit prayed that the defendant be restrained from causing any interference in the suit land. Plaintiff, in alternative also prayed that decree for possession may also be granted in his favour in case defendant is found to be in possession of the suit land or any part thereof. In the aforesaid background, plaintiff by way of suit prayed that the defendant be restrained from causing any interference in the suit land. Plaintiff, in alternative also prayed that decree for possession may also be granted in his favour in case defendant is found to be in possession of the suit land or any part thereof. 3. Defendant by way of written statement refuted the claim of the plaintiff in toto. Defendant in his written statement took specific objection that the suit is not maintainable since the suit land and adjoining land i.e. khasra No.278/1 has already been demarcated by the Local Commissioner appointed by the learned trial Court in Civil Suit No.32 of 1995, titled as Hira Lal versus Rattan Chand, which is pending in the Court and boundaries have already been fixed. On merits, defendant submitted that adjoining khasra No.278/1 is owned and possessed by him and he is not doing anything over the suit land. Defendant specifically denied that there is any boundary dispute between the parties because as per him dispute of boundaries, if any, has already been settled by the learned trial in another case of Hira Lal versus Rattan Chand. It is specifically averred in the written statement that Local Commissioner has already fixed the boundary between khasra No.278/1 and the suit land. Defendant specifically denied the allegation of uprooting the boundary, as alleged by plaintiff and denied any kind of encroachment made by him in the suit land. Defendant averred that the plaintiff has no cause of action, whatsoever, to maintain the suit in question as nothing has been done by him over the suit land. 4. In replication, the plaintiff has denied the contents of the preliminary objections taken in reply being wrong and on merits reiterated his case as set out in the plaint. 5. Learned trial Court after appreciating the pleadings available on record framed the following issues on 14.1.2000:- 1. Whether the plaintiff is entitled to the relief of fixation of boundaries by way of demarcation as alleged? OPP. 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 3. Whether the plaintiff is entitled to the relief of possession by way of demolition, as prayed for? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5. OPP. 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 3. Whether the plaintiff is entitled to the relief of possession by way of demolition, as prayed for? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the plaintiff is stopped from filing the suit by his own act and conduct as alleged? OPD. 6. Whether the plaintiff has no cause of action as alleged? OPD. 7. Relief. 6. Learned trial Court on the basis of the evidence available on record decided issues No.1 and 2 in affirmative and rest of all were decided in negative. Learned trial Court vide impugned judgment and decree dated 30.11.2004 decreed the suit of the plaintiff for fixation of boundaries and for permanent prohibitory injunction with cost. However, issue with regard to possession of the suit land was decided against the plaintiff and hence no relief qua the same was granted to the plaintiff. 7. Feeling aggrieved and dissatisfied with the impugned judgment passed by learned trial Court, defendant filed an appeal bearing No.111 of 2005 in the court of learned District Judge, Hamirpur under Section 96 CPC read with Section 21 of the H.P. Courts Act, 1976. Learned District Judge, Hamirpur vide judgment dated 16.9.2006 accepted the appeal and quashed and setaside the impugned judgment and decree passed by learned trial Court, as a result of which, suit of the plaintiff was ordered to be dismissed. Hence, the present appeal before this Court. 8. This Court vide order dated 19.5.2008 was pleased to admit the instant appeal on the following substantial questions of law:- 1. Whether the impugned judgment passed by the learned first appellate Judge is the result of total misreading and also misappropriation of pleadings, material and evidence adduced on record by the parties and thus, the resultant findings and conclusions drawn by the learned 1st appellate Judge are wrong and perverse? 2. Whether the plaintiff was entitled for decree of permanent prohibitory injunction etc. against the defendant (respondent) when after demarcation it was established and proved on record that the defendant was asserting his right of possession over the bamboo grove in the suit land which was owned and possessed by the plaintiff? 3. 2. Whether the plaintiff was entitled for decree of permanent prohibitory injunction etc. against the defendant (respondent) when after demarcation it was established and proved on record that the defendant was asserting his right of possession over the bamboo grove in the suit land which was owned and possessed by the plaintiff? 3. Whether the report dated 11.3.2001 of the Local Commissioner (Tehsildar) appointed by the learned trial Judge during the pendency of the suit for demarcation of the suit land was wrongly discarded by the learned First appellate Court? 9. I have heard the learned counsel for the parties and gone through the record. 10. Mr. Ashwani Kumar Sharma, learned Senior Advocate for the plaintiff vehemently argued that the impugned judgment and decree passed by learned District Judge, Hamirpur reversing the judgment and decree of learned trial Court, decreeing the suit, is against law and facts of the case and contrary to evidence on record and, as such, same deserves to be quashed and set-aside. He contended that bare perusal of the evidence available on record is enough to demonstrate that the learned first appellate Court while passing the impugned judgment has failed to appreciate the pleas set up by the parties in its right perspective. He further contended that the evidence adduced in support of the pleas taken in the plaint have not been considered in proper and legal perspective. Mr. Sharma, forcibly contended that learned first appellate Court has miserably failed to appreciate the actual controversy involved in the matter and passed the judgment and decree in appeal is very slip shod manner without adverting to the documentary evidence available on record. It is contended that the plaintiff had filed Civil Suit for decree of Permanent Prohibitory Injunction with respect to the suit land restraining the defendant on the ground that lands of the parties are contiguous to each other. It is contended that the plaintiff had filed Civil Suit for decree of Permanent Prohibitory Injunction with respect to the suit land restraining the defendant on the ground that lands of the parties are contiguous to each other. In 1922-23, when the land was partitioned in the absence of plaintiff, Karukans (measurement of the land) was incorrectly changed in the revenue record while recording mutation No.36, dated 24.2.1992, which fact never came to the knowledge of the plaintiff and, as such, wrong entries with respect to measurement continued to be carried forward and it was only recent settlement of land, aforesaid factum of wrong entries came to the knowledge of the plaintiff, who thereafter applied before the Settlement Officer, Kangra Division at Dharamshala for correction of such wrong revenue entries. Mr. Sharma, learned counsel forcibly submitted that proceedings as regards the correction were still pending before the said Authority during the pendency of the appeal. But now necessary corrections have been carried out by the revenue authorities on the application of the plaintiff. 11. Learned counsel for the plaintiff forcibly contended that it was duly proved by the plaintiff that he was owner in possession of the suit land and even the Local Commissioner (Tehsildar) appointed by the learned trial Court during the pendency of the suit, who had demarcated the suit land on the basis of old Aks Musabi reported in its report that there exist a bamboo grove on the suit land. He contended that findings and conclusions recorded by learned District Judge being totally contrary to the record available on record have been made basis to pass impugned judgment and decree in appeal and, as such, same deserves to be quashed and set-aside. Mr. Sharma, strenuously argued that since entries pertaining to the measurements of the suit land in the existing revenue record were incorrect and same were under challenge before the competent Revenue Officer, whereby the proceedings for their correction are pending consideration, there was no justification for the first appellate court to discard the report of the Local Commissioner, who admittedly demarcated the land on the basis entries contained in the Latest Aks Musabi prepared during the last settlement. Lastly, Mr. Lastly, Mr. Sharma, learned counsel contended that the plaintiff was not under any legal obligation to seek correction of the entries in the revenue record in the suit filed by him, since the matter with regard to the correction of wrong entries was already under challenge, in the separate proceedings filed by him before the revenue Court. In the aforesaid background, it was prayed on behalf of the plaintiff that the impugned judgment and decree in appeal passed by learned District Judge deserves to be quashed and set-aside. 12. Mr. Bhuvnesh Sharma, learned counsel representing the respondent supported the judgment passed by learned first appellate Court. He contended on behalf of the defendant that no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case, because bare perusal of the impugned judgment and decree passed by learned first appellate Court suggest that the same is based upon correct appreciation of the evidence available on record. Mr. Sharma, learned counsel further contended that its stands proved beyond doubt that the demarcation report given by Tehsildar on the application filed by the plaintiff was on the basis of Musabi for the year, 1910-11, which stands admittedly revised. It is also contended that learned trial court has rightly concluded that the demarcation of boundary is to be carried out from the field map (Shajra) prepared in the last settlement. In the present case, demarcation was not carried out in accordance with the instructions issued in this regard. 13. During arguments, he invited the attention of this Court to the averments contained in the plaint to demonstrate that there is no mention, whatsoever with regard to the dispute of existence of bamboo grove on the suit land, rather careful perusal of the plaint suggests that by way of suit, decree for fixation of boundaries by way of demarcation of the suit land has been prayed for. He also invited the attention of the Court to the statement Ex.PW1/A recorded by Local Commissioner of the plaintiff at the time of demarcation conducted on 11.3.2001 to demonstrate that plaintiff Rattan Chand refused to get the land demarcated on the basis of new record, rather he insisted that demarcation be conducted on the basis of ‘Shajra Musabi’ for the year, 1891-92 and 1910-11. Mr. Mr. Sharma, learned counsel submitted that there is no illegality and infirmity in the impugned judgment passed by learned first appellate Court and, as such, same deserves to be upheld. 14. Though, present appeal has been admitted on three substantial questions of law reproduced hereinabove but this Court deems it proper to take up substantial question No.2, for consideration at first instance as it directly relates to the relief claimed by the plaintiff against the defendant. This Court is of the view that while ascertaining/determining the substantial question No.2, this Court is required to examine the evidence be it ocular or documentary available on record and as such while critically analyzing the evidence available on record, substantial question of law No.1 would be automatically answered alongwith substantial question No.2. 15. Careful perusal of the plaint filed by the plaintiff suggests that he claimed decree for permanent prohibitory injunction restraining the defendant from raising any construction, changing nature or from interfering in any manner, whatsoever either by taking forcible possession of the suit land. Plaintiff in alternative also prayed for decree of possession being absolute owner in possession of the suit land. Interestingly, this Court while perusing the plaint available on record failed to get any averments made by plaintiff with regard to the existence of bamboo grove, if any, on the suit land, rather specific case set up by the plaintiff was that the defendant being stranger is hell-bent in digging the suit land and uprooting the boundaries forcibly with a view to raise construction. Though, it finds mention in the plaint that defendant is the owner in possession of adjoining land comprising khasra No.278/1 but there is no mention/averment, if any, in the plaint with regard to bamboo grove on the suit land. This court solely with a view to answer substantial questions framed by this Court also had an occasion to peruse the statement made by plaintiff Rattan Chand. Plaintiff (PW-1) in his examination in-chief stated that he is owner of the disputed land comprising khasra No.1096, measuring 0-03-82 hectares. He stated that disputed land is contiguous of the land of the defendant Hira Lal. It has come in his statement that land is barren and there exists one bamboo grove and he is the owner of the same. He stated in his examination-in-chief that there exists one bamboo grove and he is the owner of the same. He stated that disputed land is contiguous of the land of the defendant Hira Lal. It has come in his statement that land is barren and there exists one bamboo grove and he is the owner of the same. He stated in his examination-in-chief that there exists one bamboo grove and he is the owner of the same. He stated in his examination-in-chief that defendant quarrels with him with regard to bamboo grove and claimed him to be the owner of the same. He has stated that in this regard he had filed a suit in the Court, wherein Local Commissioner was appointed by the Court and as per the report of the Local Commissioner Bamboo grove falls in his land. 16. Careful perusal of the deposition made by plaintiff before the learned trial Court, nowhere suggest that the plaintiff stated something in support of his averments contained in the plaint. To the contrary, plaintiff while examining himself as PW-1 has set up new case, which admittedly was not set up in the plaint as has been observed above, after perusing the plaint. There is no mention, whatsoever, with regard to bamboo grove on the suit land in the plaint filed by the plaintiff. 17. Though, plaintiff by way of filing suit in question set up a case that defendant is head strong person who is hell-bent in digging out and uprooting the boundaries with a view to raise construction on the suit land, but interestingly, there is nothing in his statement made in examination-in-chief before the Court with regard to any kind of interference in the suit land by defendant. In his entire statement, plaintiff has nowhere stated that defendant is interfering in the suit land and intending to raise construction over the same. Similarly, there is no whisper with regard to uprooting of the boundaries by the defendant, as alleged in the plaint. Rather, careful perusal of the deposition made by him suggests that he changed very nature of dispute of the suit land, wherein he claimed the ownership and possession of the bamboo grove. Plaintiff claimed himself to be owner of the aforesaid bamboo grove on the basis of the report dated 11.3.2001 submitted by the Local Commissioner, who was admittedly appointed by the learned lower court. 18. Plaintiff claimed himself to be owner of the aforesaid bamboo grove on the basis of the report dated 11.3.2001 submitted by the Local Commissioner, who was admittedly appointed by the learned lower court. 18. Interestingly, the Tehsildar, who conducted the demarcation in terms of the order passed by learned trial Court was neither examined nor cross-examined by any of the parties to the suit. Moreover, his report was not exhibited in evidence. However, further careful perusal of the cross-examination of the plaintiff suggest that he admitted his statement Ex.PW1/A i.e. statement made by the plaintiff at the time of demarcation conducted on 11.3.21004 by the Tehsildar pursuant to the order passed by the learned trial Court. This Court had an occasion to peruse the Ex.PW1/A, perusal whereof suggest that the plaintiff was not keen to take demarcation as per new record and he insisted that demarcation be conducted on the basis of the old record i.e. ‘Aks Shajra’ for the year, 1891-92 and 1910-11. Perusal of Ex.PW1/A further reveals that plaintiff stated at the time of demarcation that he has preferred an application before the Settlement Officer, Kangra Division at Dharamshala on the basis of old record for correction of ‘Aks Musabi’ and revenue record. 19. Statement of defendant Hira Lal was recorded at the time of demarcation conducted on 11.3.2001 also reveals that he was present alongwith Local Commissioner. He also stated that plaintiff Rattan Chand does not want demarcation to be conducted on the basis of recent record. He also stated that he had obtained demarcation report from the Tehsildar on 25.10.1998, in terms of the order passed by learned court below, copy whereof was made available to the authorities concern at the relevant time. 20. Though, demarcation report as has been observed above has not been exhibited but the same is available on record at page 64 of the records of the trial court. This Court with a view to ascertain correctness of the statement Ex.PW1/A made by plaintiff, perused demarcation report dated 11.3.2001 which suggests that plaintiff insisted for demarcation on the basis of ‘Aks Shajra’ pertaining to the year, 1891-92 and 1910-11 and he opposed the demarcation of the land at the relevant time on the basis of the recent record. This Court with a view to ascertain correctness of the statement Ex.PW1/A made by plaintiff, perused demarcation report dated 11.3.2001 which suggests that plaintiff insisted for demarcation on the basis of ‘Aks Shajra’ pertaining to the year, 1891-92 and 1910-11 and he opposed the demarcation of the land at the relevant time on the basis of the recent record. Further perusal of the demarcation report suggest that there is contradiction between Aks Shajra for the year 1891-92 qua khasra No.194 and ‘Aks Shajra’ for the year, 1961-62. The Local Commissioner in his report stated that if the land is demarcated in accordance with the shajra for the year, 1910-11, bamboo grove falls in khasra No.1096 owned by the plaintiff. Local Commissioner in his report categorically stated that plaintiff Rattan Chand does not want to get the land demarcated on the basis of recent record since he has already filed an application for correction of revenue entries before the Settlement Collector, Kangra. 21. It is ample clear from the perusal of Ex.PW1/A as well as demarcation report dated 11.3.2001 that the plaintiff insisted for settlement on the basis of old record i.e. Aks Musabi for the year 1891-92 and 1910-11. It has also come in the demarcation report that the plaintiff at the time of demarcation produced copy of Aks musabi for the year 1891-92 and 1910-11 alongwith field book and copy of mutation No. 36, dated 24.2.pertaining to ‘Aks Shajra’ for the year, 1961-62. Plaintiff insisted for demarcation on the basis of Musabi prepared for the year, 1891-92 and 1910-11 because as per him wrong map was prepared and on the strength of mutation No.36, dated 24.2.1922 consolidation was carried out in the year, 1961-62. Since consolidation carried out 1961-1962 was based on wrong map prepared during the last settlement 1961-62 for which he already moved an application for correction of revenue entries before the Settlement officer Kangra, no demarcation could be given on the basis of recent settlement. 22. At this stage, it is pertinent to notice that learned trial Court vide order dated 7.8.2000 appointed Local Commissioner with a direction to demarcate the suit land comprised in khasra No. 1096, measuring 0-03-82 hectares as per ‘Missal Hakiat’ for the year, 1996-97 and fix its boundaries. 22. At this stage, it is pertinent to notice that learned trial Court vide order dated 7.8.2000 appointed Local Commissioner with a direction to demarcate the suit land comprised in khasra No. 1096, measuring 0-03-82 hectares as per ‘Missal Hakiat’ for the year, 1996-97 and fix its boundaries. Record further reveals that specific reference was issued to the Local Commissioner to report the nature of the encroachment and the construction laid by the defendant, if any. But interestingly, as has been noticed above by this Court while perusing Ex.PW1/A and the demarcation report given by the Local Commissioner, the Local Commissioner instead of carrying out the demarcation of the suit land comprised in khasra No.1096, as per missal Hakiat for the year, 1996-97 referred to the old record for the year 1891-92 and 1910-11 as insisted by the plaintiff. Careful perusal of demarcation report dated 11.3.2001 clearly demonstrates that Local Commissioner did not conduct demarcation strictly in terms of the reference and order dated 7.8.2000 passed by the learned trial court, rather Local Commissioner acting on the basis of the statement of plaintiff Ex.PW1/A recorded at the time of demarcation gave demarcation report, if any, on the basis of Aks Shajra pertaining to the year, 1891-92 and 1910-11 Local Commissioner instead of giving specific report as was called by the court referred to Aks Shajra Musabi pertaining to the year1891-92 and 1910-11 and concluded that as per Aks Shajra 1910-11 bamboo grove exist on khasra No.1096 owned by the plaintiff. Further perusal aforesaid report dated 11.3.2001 also suggest that the demarcation, if any, was not conducted in terms of the instructions contained in paragraph 10(2)(I) of Chapter 10 of the H.P. Land Records Manual, where it has been specifically provided that the boundaries in dispute should be relayed from the village map prepared at the last settlement, meaning thereby that the demarcation, if any, was required to be carried out by the Local Commissioner on the basis of Aks Musabi prepared during the last settlement, whereas report of Local Commissioner dated 11.3.2011, nowhere suggest that he carried demarcation on the basis of copy of Musabi prepared during last settlement. If statement Ex.PW1/A is carefully read, it clearly emerges that the plaintiff attempted to set up a new case with regard to the correction of revenue entries, which was admittedly never the case of the plaintiff in his plaint. If statement Ex.PW1/A is carefully read, it clearly emerges that the plaintiff attempted to set up a new case with regard to the correction of revenue entries, which was admittedly never the case of the plaintiff in his plaint. It appears that plaintiff with a view to avoid demarcation in terms of recent settlement purportedly raked up the issue with regard to preparation of wrong map on the strength of mutation No.36, dated 24.2.1992. Plaintiff by producing copy of Aks Musabi 1891-92 and 1910-11 and copy of mutation No.36, dated 24.2.1922 of aka shajra No.1961- 62 before Local Commissioner has made an attempt to set up a case for correction of revenue entries, which has been never pleaded by him in the plaint. 23. This Court after carefully examining the averments contained in the plaint as well as statement of the plaintiff recorded before the trial court below, is of the view that he has miserably failed to prove his case set up in the plaint. Though, in the plaint, he averred that there is boundary dispute between the parties, but perusal of statement made by him while appearing as PW-1 to prove his case nowhere reveals that there is boundary dispute between the parties, rather statement given by plaintiff is fully devoted to prove that some bamboo grove exist on the suit land, which belongs to him. Since no specific evidence, whatsoever has been led on record to prove the averments contained in the plaint, where specific allegation of interference, raising construction, changing nature of land and taking forcible possession of the suit land has been alleged against the defendant, no relief as claimed by the plaintiff can be granted to him. 24. Since there was no specific mentioning with regard to the dispute, if any, qua the bamboo grove on the suit land raised by the plaintiff in the plaint, there was no occasion for the Court below to look into that aspect. To the contrary, learned court below was only under obligation to examine the issue whether there is any boundary dispute, if any, between the parties or not or whether defendant have interfered in the suit land by raising construction or not. Admittedly, in the present case, trial court with a view to ascertain the boundary dispute had appointed the Local Commissioner to give its report after measuring boundaries on the basis of recent settlement record. Admittedly, in the present case, trial court with a view to ascertain the boundary dispute had appointed the Local Commissioner to give its report after measuring boundaries on the basis of recent settlement record. But as has been discussed, Local Commissioner appointed by the court below gave its report on the basis of record pertaining to year, 1891-92 and 1910-11 and instead of giving specific answer to the claim referred to him gave his report on the basis of documents made available by plaintiff at the time demarcation. If at this juncture, report of Local Commissioner is considered to the extent where he has reported that if land is measured in terms of Aks Shajra for the year 1891-92 and 1910-11, bamboo grove falls in khasra No.1096 owned by the plaintiff, then also report of Local Commissioner cannot be taken into consideration solely for the reason that the demarcation was not carried out in terms of instructions contained in paragraph 10(2) of Chapter 10 of H.P. Land Records Manual and, as such, same could not be looked into. 25. In State of H.P. vs. Laxmi Nand and others [1992 (2) SLC 307], Hari Dass and others vs. State of H.P. [1996 (2) SLC 370], this Court has considered in detail how the demarcation is to be conducted. In State of H.P. vs. Laxmi Nand and others (supra), in para 17 of the judgment, it has been held as follows:- “It is the admitted case of the parties that in so far as the three revenue estates are concerned, the maps prepared during the last settlement were not on square system. Accordingly, the demarcating officer was required to relay the boundaries of the fields sought to be demarcated from the Shajra (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. The three points so selected and to be taken as basis must be those, which are admitted to have remained undisputed from the last settlement. The officer is thereafter required to chain threes three points on the spot and then compare the result with the distance given as per scale on the Shajra. It is only when distance, so compared, agree that the Revenue Officer can proceed with the further work of measurement. The officer is thereafter required to chain threes three points on the spot and then compare the result with the distance given as per scale on the Shajra. It is only when distance, so compared, agree that the Revenue Officer can proceed with the further work of measurement. A pencil line is supposed to be drawn joining these three permanent points and thereafter perpendiculars are supposed to be drawn from these lines to each of the point, which are required to be located on the spot, in order to enable him to find out the exact distance from these points to the point sought to be demarcated, and then tally the result with the help of the scale of the Shajra, which can be drawn only with the help of a crossed staff. The result to be fially (sic-finally) checked by measuring on the spot, the distance and then tallying the result with the help of scale on the Shajra. Since this report of demarcation is liable to scrutiny, by way of evidence, it is required that the report of the concerned officer on the face of it must explain the details and the manner as to how he made his measurements, which report must accompany a copy of the relevant portion of the Field Book of current settlement of the village showing Karukans (dimensions) of the fields of which he took measurements as also a map showing therein the three permanent points, the fields measured and the boundary in dispute. As per the instructions, this is one of the necessary requirements to enable the court to follow the method adopted and also in order to find out the veracity of the proceedings. The other requirement, while submitting the report is to record the statements of interested parties before taking the three permanent points to the effect that all of them agreed and accepted the three points as permanent points on three different sides of the property. In case any objection is raised as to the manner in carrying out the demarcation, the said objection is required to be reduced into writing, so as to avoid the possibility of raising any question specifically and also to enable the court to decide such objections. In case, objection is raised on the spot, the demarcating officer is also required to submit his opinion on such objections. In case, objection is raised on the spot, the demarcating officer is also required to submit his opinion on such objections. In case, while carrying out the demarcation, any discrepancy is noticed in the area of the fields abutting on the boundary in dispute, as recorded in the last settlement and the one arrived at as a result of the actual measurement on the spot, the report is required to incorporate the same with explanation as to the cause of increase or decrease, if any, discovered on the spot. All these requirements, in our opinion, have been incorporated in the instructions with the ultimate object of ascertaining that while carrying out the demarcation correct method was adopted and no mistake committed.” 26. In State of H.P. vs. Piara Singh and others. The relevant para No.18 of the judgment is reproduced as under:- “18. The demarcation is to be carried out by the revenue authorities in accordance with the provisions of the Act as well as in accordance with the instructions aforesaid and the revenue authorities are duty bound under the provisions of section 107 of the Act to carry out the same. It has been so held by this court in case Radha Soami Satsang Beas through Sh. Madan Gopal Singh V. State of H.P and another, ILR 1984 HP 317. In the face of this position, it is manifestly clear that the function to demarcate the limits of any holding/field is a statutory function being quashi-judicial in nature. It is absolutely necessary for the concerned revenue officer to perform such functions strictly in accordance with the instructions and guidelines issued by the Financial Commissioner under the provisions of section 106 of the Act and he has no business much less authority to deviate therefrom as it is likely to result in affecting the valuable rights of the parties concerned. The demarcation report must spell out so as to enable the authority/court concerned when it is brought before it, the method adopted by the revenue officer while carrying out the demarcation. With the aforesaid background, it is necessary to examine the submission of the learned counsel for the appellants (Shri Jagdish Vats and Shri Ajay Mohan Goel) to examine the evidence of PW-22, PW-23, PW-29 and PW-56. It is worthwhile to clarify here that there are three reports according to the prosecution. With the aforesaid background, it is necessary to examine the submission of the learned counsel for the appellants (Shri Jagdish Vats and Shri Ajay Mohan Goel) to examine the evidence of PW-22, PW-23, PW-29 and PW-56. It is worthwhile to clarify here that there are three reports according to the prosecution. First is the one that is stated to have been given by the accused, Hari Dass on the application of Mohan Lal and Misru Mal when applications of different landowners were forwarded by Divisional Forest Officer, Chopal to Range Officer, Tharoch, who in turn, had forwarded those to Block Officer for the purpose of getting the land demarcated so as to enable the marking and felling of trees. On the basis of this report the trees had been marked by accused Bir Singh and Satya Dev Sharma as per marking lists. The second demarcation report is that of PW-22, Labu Ram, Kanungo who had given the details of the area from which illicit felling had been done. He states that he had prepared the demarcation reports after carrying out demarcation which had been sent by him to the SDO(Civil) Chopal along with connected revenue papers. This witness has further stated that he had not been drawn any spot map. He had simply signed the same and the spot maps were drawn by the Patwari and not by this witness. It is interesting to note that the demarcation report prepared and submitted by this witness had not been brought on record by the prosecution for the reasons best known to it. The papers with the help of which he had carried out the demarcation are Exts. PC/72 to PC/109 and Ext. PC/110 is the copy of field book which he saw in the court and boundaries were re-laid by making reference to the village map. In his cross-examination, he admitted that in the documents exhibited in the statement, he had not drawn perpendiculars on the spot maps. PC/72 to PC/109 and Ext. PC/110 is the copy of field book which he saw in the court and boundaries were re-laid by making reference to the village map. In his cross-examination, he admitted that in the documents exhibited in the statement, he had not drawn perpendiculars on the spot maps. In this contest, it may be appropriate to mention here that since the report of this witness of demarcation is liable to scrutiny by way of evidence, it was expected of him to explain the details and the matter as to how the measurements were carried out by him alongwith a copy of the field book of current settlement of village showing the dimensions of the fields of which he took measurements as also a plan showing three permanent points, details of the fields measured and boundaries in dispute. At the same time, this witness as well as other witnesses, namely PWs 23, 29 and 56 were also required to record the statements of the persons interested that they had agreed for the fixation of three permanent points on different three sides of the property. In the event of any objection being raised, the same should have been noted. In case of any discrepancy on account of increase or decrees of the area, the same was also required to be mentioned in the demarcation report. This should have been done to ensure proper and correct demarcation and to warrant that no mistake creeps in the demarcation.” 27. Moreover, plaintiff nowhere instituted a suit for declaration to the effect that he is owner in possession of the land under bamboo grove, rather his specific case was/is for correction of boundaries by way of demarcation of the suit land and for permanent prohibitory injunction and for possession after demolition of superstructure, if any, raised by the defendant during the pendency of the suit. Interestingly, there is nothing in the statement of PW-1 to prove the averments contained in the plaint, to the contrary some new story with regard to existence of bamboo grove on the suit land has been set up in the statement recorded before the Court. Interestingly, there is nothing in the statement of PW-1 to prove the averments contained in the plaint, to the contrary some new story with regard to existence of bamboo grove on the suit land has been set up in the statement recorded before the Court. Since suit filed by the plaintiff was specifically for fixation of boundaries by way of demarcation of the suit land, courts below were required to ascertain whether defendant encroached upon the land of the plaintiff in any manner or there is any forcible construction, if any, on the part of the land owned and possessed by the plaintiff. But in the present case interestingly courts below leaving aside the actual controversy at hand, proceeded to decide new case set up by the plaintiff in his statement with regard to existence of bamboo grove on the suit land. 28. Though, learned trial Court at first instance with a view to ascertain the correctness of the allegation with regard to the dispute of boundaries, appointed Local Commissioner, who instead of submitting his report in terms of specific reference made to him acted on the basis of statement given by the plaintiff at the time of demarcation and instead of giving demarcation on the basis of latest settlement record, proceeded to give his findings on the correctness of the revenue entries recorded by the authorities in past, but learned court below after finding mention of bamboo grove in the report submitted by the Local Commissioner as well as statement of plaintiff recorded during the trial proceeded to decide the issue of existence of bamboo grove on the suit land, which is/was admittedly never subject matter of the suit, if any. Since, no specific evidence whatsoever, was led on record by the plaintiff to prove its specific case of dispute of boundaries, there was no occasion whatsoever, for the learned trial court below to decree the suit of the plaintiff for fixation of boundaries and for permanent prohibitory injunction with cost. This Court is unable to understand on what basis the learned trial court passed decree for fixation of boundaries and for permanent prohibitory injunction, once the plaintiff failed to prove that there was some boundary dispute and defendant tried to interfere in the suit land. This Court is unable to understand on what basis the learned trial court passed decree for fixation of boundaries and for permanent prohibitory injunction, once the plaintiff failed to prove that there was some boundary dispute and defendant tried to interfere in the suit land. Hence, judgment and decree for permanent prohibitory injunction passed by learned trial Court is not justified at all in the given facts and circumstances of the case. 29. In view of the detailed discussion made hereinabove, this Court has no hesitation to conclude that the plaintiff in no manner was entitled for decree of permanent prohibitory injunction against the defendant in the absence of specific evidence on record that interference, if any, was being made by defendant over the suit land. As has been discussed in detailed above, that the issue with regard to right and possession over the bamboo grove was not subject matter of dispute and, as such, any finding on the same by the learned Court below being uncalled for, is not required to be looked into by this Court. Since there was a specific reference to the Local Commissioner to conduct demarcation in terms of the recent records to determine the boundary dispute, if any, any findings qua the existence of bamboo grove over the suit land by the Local Commissioner had no relevance as far as controversy involved in the present suit is concerned. As has been observed above, that since demarcation was not conducted in accordance with law, any finding returned on demarcation report could not be looked into. Hence, this Court on the basis of critical analysis of the evidence made available on record has no hesitation to conclude that the plaintiff was not entitled for decree of permanent prohibitory injunction against the defendant and demarcation conducted by the Local Commissioner in contradiction of the Rules contained in paragraph 10(2) Chapter 10 of the H.P. Land Records Manual could not be looked into and, as such, substantial question of law No.2 is answered accordingly. 30. 30. Since this Court examined entire evidence available on record while exploring/finding to answer of substantial question No.2, it sees no reason to conclude that the impugned judgment passed by learned first appellate court is result of total misreading and mis-appreciation of pleadings, rather this Court after examining the evidence available on record is of the view that the judgment passed by learned first appellate Court is based upon the correct appreciation of evidence adduced by the parties. Substantial question No.1 is answered accordingly. 31. As far as substantial question No.3 is concerned, once this Court has come to the conclusion that the demarcation report dated 11.3.2001 conducted by the Tehsildar in terms of the order passed by the learned trial Court was not in accordance with the rules, same has been rightly discarded by the learned first appellate Court. Hence, substantial question No.3 is answered accordingly. 32. Consequently, in view of the detailed discussion made hereinabove, this Court sees no reason whatsoever to interfere with the well reasoned judgment passed by the learned first appellate Court and same is accordingly upheld. The appeal is dismissed along with pending applications, if any.