JUDGMENT : Sandeep Sharma, J. By way of present Regular Second Appeal filed under Section 100 of the Code of Civil Procedure by the appellants-defendants (hereinafter referred to as the `defendants’) challenge has been laid to the judgment and decree dated 16.2.2004, passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No.182-D/XIII-01, partly allowing the appeal by decreeing/modifying the judgment and decree dated 31.8.2001 passed by the learned Senior Sub Judge, Kangra at Dharamshala in Civil Suit No.21/1995. 2. Briefly stated facts, as emerged from the record, necessary for adjudication, are that plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from interfering in the possession of land comprised in Khata No.104 min, Khatauni No.163 min, Khasra Nos.3037 and 3535/3038, measuring 266.62 square meters, situated in Mohal Civil Station Mauza and Tehsil Dharamshala, District Kangra, as entered in Jamabandi for the year 1992-93 (hereinafter referred to as the `suit land’) and in the alternative plaintiff also prayed for possession of the suit land. 3. Careful perusal of the plaint filed by the plaintiff reveals that the plaintiff claims himself to be the owner in possession of the suit land and alleged that in the Ist week of March, 1995 defendants started digging the suit land with a view to raise construction thereon. Plaintiff further averred that despite several requests having been made by him to the defendants, they continued to interfere with the possession qua the suit land and as such he was compelled to file the present suit. 4. Defendants by way of filing written statement refuted the averments contained in the plaint. Apart from raising preliminary objections with regard to no cause of action, locus standi and maintainability, defendants specifically stated in written statement that the plaintiff is estopped from filing the suit by his act and conduct. Defendants further averred in the written statement that land bearing Khasra No.3038 has already been partitioned and Khasra No.3038/1 was allotted to the plaintiff which is recorded as “Gair Mumkin Rasta”. Defendants further contended in the written statement that the plaintiff himself has provided 3 meters wide passage through his land comprising Khasra No.3038/3 to the defendants as is shown in the plan of their residential house sanctioned by the Town & Country Planning Department. Defendants specifically denied the allegation of digging of suit land by them in March, 1995 for raising construction thereon. Defendants specifically denied the allegation of digging of suit land by them in March, 1995 for raising construction thereon. Defendants specifically averred that they had raised construction of their house on their own land bearing Khasra No.3036, which was purchased by them from the father of the plaintiff vide registered sale deed dated 9.9.1992. It has also come in the reply of the defendants that they have been using 3 meters wide path existing on Khasra No.3038, leading to their residential house, situated in land bearing Khasra No.3036, and in this regard placed reliance on affidavit dated 20.2.1993 allegedly executed by the plaintiff in the office of Town and Country Planning specifically stating therein that the defendants shall be entitled to use 3 meters wide passage out of his land, comprised in Khasra No.3038/3. Defendants further alleged that, on the basis of plaintiff’s affidavit, his plan was sanctioned by the Town and country Planning Department and accordingly he carried out construction on his land bearing Khasra No.3036. 5. Record further reveals that the plaintiff filed replication reiterating therein all the averments contained in the plaint but denied the case of the defendants in toto. 6. The learned trial Court, on the basis of pleadings, settled inasmuch as 9 issues and besides Issue No.9, decided all the issues against the plaintiff and accordingly dismissed the suit of the plaintiff with costs. An appeal preferred before the learned Appellate Court was partly allowed. Learned Appellate Court partly decreed the suit of the plaintiff for possession of the land comprised in Khasra Nos.3037/1, 3535/3038/1 and 3535/3038/2 as per report of the Local Commissioner Ex.AW-2/A and field book Ex.AW-3/A, however suit for injunction qua the land comprised in Khasra No.3038/3 was dismissed by the first appellate Court. 7. This second appeal was admitted on the following substantial questions of law: (1) Whether the misreading of document Ex.DW/3/A has vitiated the findings of the learned court below? (2) Whether the learned court below has correctly appreciated documents Ex.AW/2/A and Ex.AW/3/A and by misreading the above documents has arrived at a finding not warranted in the eyes of law? 8. Ms. (2) Whether the learned court below has correctly appreciated documents Ex.AW/2/A and Ex.AW/3/A and by misreading the above documents has arrived at a finding not warranted in the eyes of law? 8. Ms. Ruma Kaushik, learned counsel representing the defendants-appellants, vehemently argued that the judgment and decree passed by learned District Judge, partly allowing the appeal preferred by the plaintiff, is not sustainable in the eye of law as the same is not based upon correct appreciation of evidence available on record. She forcefully contended that bare perusal of the impugned judgment clearly suggests that evidence available on record has not been correctly appreciated in its right perspective by the learned first appellate Court, rather, the same is based upon conjectures and surmises and as such same deserves to be quashed and set aside. 9. Ms. Kaushik further contended that learned first appellate Court has fallen in grave error while concluding that defendants have encroached upon a part of the suit land comprised in Khasra Nos.3037/1, 3535/3038/1 and 3535/3038/2. In this regard, she made this Court to refer to the judgment passed by the learned Sub Judge where the claim of the plaintiff based upon demarcation report Ex.PW-3/A, prepared by PW-3 Hem Raj, Kanungo, was rejected on the ground that demarcation was not conducted in accordance with the instructions issued by the Financial Commissioner as well as provisions contained in the High Court Rules and Orders. Ms. Kaushik further contended that once trial Court below had specifically returned the findings qua the demarcation report Ex.PW-3/A that the same was not carried out in accordance with law, learned first appellate Court had no occasion, whatsoever, to return the findings that the defendants have encroached upon certain parts of the suit land comprised in Khasra Numbers mentioned above. Ms. Kaushik vehemently argued that learned Court below has misconstrued and misinterpreted various documents during the trial to the advantage of the plaintiff. During arguments, she made this Court to travel through the affidavit Ex.DW-3/A, tendered by the plaintiff before the Town and Country Planning Department at the time of submission of the building plan approved by the defendants. She stated that careful perusal of DW-3/A clearly suggests that the plaintiff himself had agreed to provide ingress and egress to Khasra No.3036 to the defendants from Khasra No.3038/3, owned by him, by providing 3 square meters wide passage. She stated that careful perusal of DW-3/A clearly suggests that the plaintiff himself had agreed to provide ingress and egress to Khasra No.3036 to the defendants from Khasra No.3038/3, owned by him, by providing 3 square meters wide passage. While concluding her arguments, she forcefully contended that the learned trial Court below could not allow plaintiff to back-out from the promise which he held to the defendants when entered into an affidavit Ex.DW-3/A, wherein he had agreed to provide 3 square meters wide passage to the defendants for ingress and egress to Khasra No.3036 from Khasra No.3038/3. In the aforesaid background, she prayed that the judgment passed by the learned first appellate Court, partly allowing the appeal of the plaintiff, may be quashed and set aside. 10. Mr. Dheeraj Kumar Vashisht, learned counsel representing the plaintiff-respondent, supported the impugned judgment dated 16.2.2004 and stated that no interference, whatsoever, of this Court is warranted as the same is based upon correct appreciation of the evidence adduced on record by the plaintiff. He further contended that bare perusal of the impugned judgment itself suggests that suit for injunction qua the land comprised in Khasra No.3038/3 has already been dismissed by the learned first appellate Court and as such defendants cannot be allowed to say that they have not been provided 3 square meters wide passage through Khasra No.3038/3. Mr.Vashisht, strenuously argued that allegation having been made on behalf of the defendants that no passage in terms of Ex.DW-3/A is being provided to them is baseless and to substantiate his arguments he made this Court to travel through the impugned judgment where learned first appellate Court, while holding defendant; namely; Soma Devi in possession of the land of plaintiff comprised in Khasra Nos.3037/1, measuring 1-64 square meters by way of projection of eves of house; 3535/3038/1, measuring 32-50 square meters “Gair Mumkin Rasta”; 3535/3038/2 measuring 7.20 square meters, “Gair Mumkin Tank Shouchalya” and 3535/3038/3 measuring 10-20 square meters “Gair Mumkin Rasta”, has specifically held that 3 square meters wide path on Khasra No.3535/3038/3 has been dedicated by the plaintiff to the defendant to approach her plot in Khasra No.3036. In view of the aforesaid submissions, Mr. Vashisht forcefully contended that defendants have no case, whatsoever, and same deserves to be dismissed out rightly. 11. Mr. In view of the aforesaid submissions, Mr. Vashisht forcefully contended that defendants have no case, whatsoever, and same deserves to be dismissed out rightly. 11. Mr. Vashisht, while concluding the arguments, categorically stated that at no point of time effort has been made by the plaintiff to obstruct the passage provided to defendants in terms of agreement Ex.DW-3/A, whereas, it stands duly proved on record that defendant No.2, under the garb of using 3 square meter wide passage, has actually encroached upon the land of the plaintiff comprised in Khasra No.3037/1, measuring 1-64 square meters by way of projections. 12. I have heard learned counsel for the parties and have gone through the record of the case. 13. Question No.1: Whether the misreading of document Ex.DW/3/A has vitiated the findings of the learned court below? It is undisputed that land comprised in Khasra No.3036 was purchased by the defendants from the father of the plaintiff vide sale deed dated 9.9.1992. Defendants set up a case that at the time of purchase of the aforesaid land from the father of the plaintiff, 3 meter wide corridor was provided by the plaintiff through his land, owned and possessed by him, bearing Khasra No.3038 for ingress and egress to their plot on Khasra No.3036. As per defendants, they could only raise construction on their plot comprised in Khasra No.3036 when the same was approved by the Town and Country Planning Department. Defendants have specifically stated that the plaintiff had tendered affidavit Ex.DW-3/A, executed by him, specifically authorizing defendants to use 3 meters wide passage through his land comprised in Khasra No.3038/3. 14. Though, in the present case, the plaintiff had filed a suit for permanent prohibitory injunction restraining the defendants from interfering in the possession of the suit land by specifically averring in the plaint that defendants have started digging the suit land with the purpose to construct a house thereon and despite several requests having been made by him, defendants have not discontinued to interfere with the possession of the suit land. Defendants, by way of written statement, denied the claim of the plaintiff in toto. However, defendants specifically averred that 3 meter wide passage through land comprised in Khasra No.3038/3, owned and possessed by the plaintiff, was being used by them as a passage to their plot comprised in Khasra No.3036. Defendants, by way of written statement, denied the claim of the plaintiff in toto. However, defendants specifically averred that 3 meter wide passage through land comprised in Khasra No.3038/3, owned and possessed by the plaintiff, was being used by them as a passage to their plot comprised in Khasra No.3036. In this regard, defendants placed reliance upon an affidavit Ex.DW-3/A, executed by the plaintiff specifically authorizing defendants to use 3 meters wide passage through his land comprised in Khasra No.3038/3 to their plot comprised in Khasra No.3036. 15. Careful perusal of the record of the trial Court suggests that in this regard defendants, by leading cogent and convincing evidence in the shape of DW-1, DW-2 and DW-3, were able to prove before the trial Court that Ex.PW- 3/A was duly executed by the plaintiff. 16. DW-1, defendant Yashbir Singh, specifically deposed that his mother had purchased land bearing Khasra No.3036 from the father of the plaintiff in the year 1992 and thereafter they have submitted building plan for approval in the office of Town and country Planning. He further stated plaintiff had provided 3 meters wide path to the defendants at the time of construction of the house through their land bearing Khasra No.3038/3. He also stated that since year 1992 they have been using 3 meters wide path as approach to their house. 17. Similarly, DW-2 Jagdish Ram, also stated that a Photostat copy of affidavit Ex.DW-3/A exhibited by plaintiff Kuldip Sood was attached with the approved plan of defendant No.1. He also stated that file pertaining to the approved building plan of defendants was received by the Municipal Committee from the office of Town and Country Planning. 18. PW-3 Nagarmal Gupta, categorically stated that Ex.DW-3/A is an attested copy of affidavit of plaintiff, which was issued by him from the original record when he was posted as Engineer in the office of Municipal Committee, Dharamshala. Whereas, this Court, while examining the record of the Court below, could not lay hand to specific evidence, if any, adduced on record by the plaintiff suggestive of the fact that Ex.DW-3/A was never executed by him at the time of sale of the plot bearing Khasra No.3036 to the defendants. Whereas, this Court, while examining the record of the Court below, could not lay hand to specific evidence, if any, adduced on record by the plaintiff suggestive of the fact that Ex.DW-3/A was never executed by him at the time of sale of the plot bearing Khasra No.3036 to the defendants. Rather, careful perusal of the evidence, adduced on record by the plaintiff, suggests that by way of producing demarcation report Ex.PW-3/A plaintiff made an attempt to prove that he is owner in possession of the suit land and defendants have encroached upon 95.12 square meters of land of the plaintiff shown as Khasra No.3535/3038/1 and as such he is entitled to a decree for possession of an area of 95.12 square meters of Khasra No.3535/3038. Hence this Court, after perusing the evidence lead on record by the respective parties in this regard, especially with regard to the provisions of 3 meters wide passage through Khasra No.3038/3, does not see any illegality in the judgments passed by both the Courts below where it has been held that plaintiff is estopped from filing the suit by his act and conduct as he himself provided 3 meters wide passage (as free passage) in favour of the defendants by way of affidavit Ex.DW-3/A. This Court, after perusing the evidence, especially Ex.DW-3/A, is of the view that both the Courts below have rightly concluded that defendants are entitled to 3 meters wide passage in terms of Ex.DW-3/A which was admittedly executed by the plaintiff. Hence, the question is answered accordingly. 19. Question No.2: Whether the learned court below has correctly appreciated documents Ex.AW/2/A and Ex.AW/3/A and by misreading the above documents has arrived at a finding not warranted in the eyes of law? 20. Admittedly, learned trial Court, while dismissing the suit preferred on behalf of the plaintiff, had concluded that the demarcation report Ex.PW-3/A, prepared by PW-3, is not in accordance with the instructions issued by the Financial Commissioner as well as provisions contained in the High Court Rules and Orders. 20. Admittedly, learned trial Court, while dismissing the suit preferred on behalf of the plaintiff, had concluded that the demarcation report Ex.PW-3/A, prepared by PW-3, is not in accordance with the instructions issued by the Financial Commissioner as well as provisions contained in the High Court Rules and Orders. As has been discussed above, while answering question No.1, plaintiff, with a view to prove that defendants have encroached upon 95.12 square meters of land of the plaintiff as shown in Khasra No.3535/3038/1, had placed reliance upon demarcation report Ex.PW-3/A, allegedly conducted by PW-3 Hem Raj, Kanungo, who had conducted demarcation and stated that as per direction of Tehsildar he carried out demarcation of the spot and prepared his report Ex.PW-3/A. He also stated that he detected that the defendants have encroached upon an area of 95.12 square meters of the plaintiff as shown in Khasra No.3535/3038/1. But in cross-examination he admitted that he did not carry out demarcation of the adjoining Khasra Numbers nor he mentioned in his report about the pucca points ascertained at the spot before demarcation. He also admitted that he only carried out demarcation of the suit land i.e. Khasra No.3037 and 3535/3038. He did not carry out demarcation of the adjoining land of the defendants. 21. Though PW-1, plaintiff himself, and PW-2 Manohar Lal, who produced record of the office of the Municipal Committee, Dharamshala, stated that in the month of March, 1995 defendants encroached upon his suit land and started raising construction thereon and he got his land demarcated by the Revenue Officers and his land was demarcated by the Kanungo and Patwari, wherein defendants were found to have encroached upon the suit land to the extent of 95.12 square meters. However, in his cross-examination he showed his ignorance that the defendants had purchased land from his father in the year 1995. He also denied filing of affidavit mark `D’ in the office of Town and Country Planning, though admitted that there is 3 meters wide pucca path existing on the spot, which leads to the house of the defendants. 22. However, in his cross-examination he showed his ignorance that the defendants had purchased land from his father in the year 1995. He also denied filing of affidavit mark `D’ in the office of Town and Country Planning, though admitted that there is 3 meters wide pucca path existing on the spot, which leads to the house of the defendants. 22. Keeping in view the specific statement of PW-3, wherein he stated that he did not carry out any demarcation of adjoining Khasra number nor he mentioned in his report about pucca points ascertained at the spot, learned trial Court rightly concluded that demarcation report cannot be taken into consideration since the same was not done in accordance with the instructions of the Financial Commissioner. Further perusal of the impugned judgment suggests that the learned first appellate Court, keeping in view the nature of dispute, i.e. boundary dispute, allowed the plaintiff, at the appellate stage, to lead additional evidence in appeal by examining AW-2 Madho Ram, Field Kanungo and Nek Ram Thakur AW-1 Tehsildar, Dharamshala. Perusal of the statements of the aforesaid witnesses suggests that Madho Ram, Field Kanungo on the specific direction of the Tehsildar, Dharamshala, carried out fresh demarcation on 12.3.2003 in the presence of parties. Careful perusal of the report itself suggests that at the time of demarcation, both the parties were present and the same was carried out by ascertaining fixed points and proper procedure was followed by Field Kanungo to carry out the demarcation. It also emerge from the record that both the parties accepted such demarcation to be correct and did not object to it and final report was accepted by AW-1 Tehsildar Shri Nek Ram Thakur. 23. As per demarcation report Ex.AW-2/A, which was admittedly carried out during the pendency of first appeal, defendant No.1, namely; Soma Devi was found to be in possession of land of the plaintiff comprised in Khasra Nos.3037/1, measuring 1-64 square meters by way of projections; 3535/3038/1, measuring 32-50 square meters “Gair Mumkin Rasta”; 3535/3038/2 measuring 7.20 square meters, “Gair Mumkin Tank Shouchalya” and 3535/3038/3, measuring 10.20 square meters “Gair Mumkin Rasta”. Record nowhere suggests that defendants, at any point of time, objected to the fresh demarcation at the first appellate stage, rather it emerges from the record that demarcation was carried out in the presence of both the parties after ascertaining fixed points as is prescribed under the instructions of Financial Commissioner and under the provisions of High Court Rules and Orders. It also emerges from the record that both the parties accepted the demarcation report Ex.AW- 2/A and no objection, whatsoever, filed to the same. The fact remains that demarcation report EX.AW-2/A clearly suggests that defendants have encroached upon the land of the plaintiff comprised in Khasra No. 3535/3038/3. At this stage, it is pertinent to mention that though the plaintiff at the stage of trial Court had placed reliance on the report Ex.PW-3/A i.e. demarcation report prepared by PW-3, but same was not accepted on the ground that demarcation was not carried out on spot in accordance with the instructions issued by the Financial Commissioner as well as High Court Rules and Orders issued in this regard. But after perusing Ex.AW-2/A it stands duly established on record that defendants have encroached upon a part of the suit land comprised in Khasra Nos.3037/1, 3535/3038/1 and 3535/3038/2 and as such defendants have no right, title or interest to possess the same, meaning thereby that the report Ex. PW-3/A was correct, but same could not be given effect to solely for the reason that demarcation at this stage was not carried out in accordance with law. 24. Now, question which needs to be determined is that “whether learned first appellate Court has rightly appreciated Ex.AW-2/A and Ex.PW-3/A or not?”. Careful perusal of statements made by AW-1 Tehsildar Nek Ram Thakur and AW-2, Field Kanungo Madho Ram, leaves no doubt in the mind of the Court that demarcation, carried out on 12.3.2003, was in accordance with law and same was carried out in the presence of both the parties after ascertaining fixed points and the proper procedure was followed by the Field Kanungo and as such this Court sees no reason to conclude that the Courts below have not appreciated Ex.AW-2/A and Ex.PW-3/A correctly and have arrived at the wrong conclusion. As has been observed above, there is no record suggestive of the fact that at any point of time defendants objected to fresh demarcation during the pendency of the first appeal before the learned first appellate Court. Apart from this, no objection, if any, with regard to non-adherence of proper procedure, while carrying out demarcation, was raised before the first appellate Court and as such defendants at this stage cannot be allowed to say that Court below has not rightly appreciated documents Ex.AW-2/A and Ex.AW-3/A. Hence this question is answered accordingly. 25. Moreover, after perusing the complete evidence, be it ocular or documentary, available on record it is not understood that in what manner defendants-appellants are aggrieved at this stage because both the Courts below have categorically returned findings that the defendants are entitled to 3 meters wide passage without hindrance or obstruction for going to her plot comprising in Khasra No.3036 and in this regard suit for injunction qua the land comprising in Khasra No. 3535/3038/3 has been specifically dismissed by both the Courts below. Since no specific challenge, whatsoever, has been laid by the defendants to the findings returned by the first appellate Court that defendant No.1; namely soma Devi, has encroached upon land of the plaintiff comprised in Khasra No.3037/1, measuring 1-64 square meters by way of projection of eves of house; 3535/3038/1, measuring 32- 50 square meters “Gair Mumkin Rasta”; 3535/3038/2 measuring 7.20 square meters, “Gair Mumkin Tank Shouchalya” and 3535/3038/3 measuring 10.20 square meters “Gair Mumkin Rasta”, this Court sees no occasion, whatsoever, to look into the merits or demerits of the aforesaid findings of the Court in the present appeal, wherein admittedly apart from above, it has been held that 3 meters wide passage on Khasra No.3535/3038/3 has been dedicated by the plaintiff to defendant No.1 to approach her plot on Khasra No.3036. However, for the sake of clarity, it is clarified that defendant is entitled to 3 meters wide passage to go to her plot comprising in Khasra No.3036 strictly in terms of Ex.DW-3/A executed by the plaintiff and duly proved by the defendants before the Courts below. 26. Consequently, in view of the aforesaid discussion, this Court sees no reasons, whatsoever, to interfere in the judgment and decree passed by the first appellate Court as the same is based upon proper appreciation of the evidence available on record. 26. Consequently, in view of the aforesaid discussion, this Court sees no reasons, whatsoever, to interfere in the judgment and decree passed by the first appellate Court as the same is based upon proper appreciation of the evidence available on record. Hence the same is liable to be upheld. The appeal is dismissed. 27. Interim stay, if any, is vacated. All the miscellaneous applications are disposed.