JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellants (hereinafter referred to as the defendants) against the respondent (hereinafter referred to as the plaintiff) challenging the judgment passed by the learned District Judge, Hamirpur, in Civil Appeal No. 110 of 2005, decided on 16.01.2006, whereby the judgment passed by the learned Trial Court in Civil Suit No. 87 of 1999, decided on 06.06.2005, was reversed. 2. Briefly stating the facts giving rise to the present case are that the plaintiff had instituted a civil suit for permanent prohibitory and mandatory injunction against the defendants. Precisely, the plaintiff contended that he alongwith other co-sharers is owner-in-possession of the land comprised in Khata/Khatauni No. 82 min/100 min, Khasra No. 1043, measuring 10 marlas, as per jamabandi for the year 1992-93, situated in Revenue Estate, Kakar, Tapa Mewa, Tehsil Bhoranj, District, Hamirpur, H.P. (hereinafter referred to as the suit land). As per the plaintiff, the suit land abuts Chandruhi-Sarkaghat highway and commercially valuable. On 25.02.1999 the defendants started raising construction over the suit land and thereby they tried to dispossess the plaintiff. The defendants were requested to desist from raising the construction, but they turned deaf ear. Hence the plaintiff instituted a suit for permanent prohibitory and in the alternative for mandatory injunction. 3. The defendants resisted the claim of the plaintiff by filing written statement. As per the defendants they had not raised any construction over the suit land and they have raised the construction on their own land. The learned Trial Court framed the following issues:- “1. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP 2. Whether in the alternative, the plaintiff is entitled to decree for possession by way of demolition of such construction as prayed for? OPP 3. Whether the plaintiff has no cause of action to file the suit? OPD 4. Relief.” After deciding issues No. 1 and 2 against the plaintiff and issue No. 3 against the defendant, the suit of the plaintiff was dismissed. Thereafter, on an appeal being preferred by the plaintiff, the learned Lower First Appellate Court decreed the suit and set-aside the findings rendered by the learned Trial Court, hence the present regular second appeal. 4. Relief.” After deciding issues No. 1 and 2 against the plaintiff and issue No. 3 against the defendant, the suit of the plaintiff was dismissed. Thereafter, on an appeal being preferred by the plaintiff, the learned Lower First Appellate Court decreed the suit and set-aside the findings rendered by the learned Trial Court, hence the present regular second appeal. 4. The present regular second appeal was admitted on the following substantial question of law:- “Whether the learned First Appellate Court has committed an illegality in believing the Local Commissioner’s report and decreeing the suit on the strength of that report?” 5. Heard. The learned counsel for the appellants herein has argued that no construction was raised by the them on the land of the respondent herein and the learned First Appellate Court has passed the judgment on the basis of the report of the Local Commissioner, which was neither proved nor the demarcation was carried-out by the Local Commissioner, as per the settled law. On the other hand, the learned counsel for the respondents herein has argued that the learned First Appellate Court has rightly relied upon the report of the Local Commissioner and, therefore, the judgment and decree of the learned First Appellate Court needs no interference. 6. To appreciate the arguments of the learned counsel for the parties, I have gone through the record of the case in detail. 7. It stands fully established that the plaintiff is cosharer of the suit land and this fact has not been agitated by the defendants as well. The only allegations which the plaintiff is imputing against the defendants is that they have raised the construction over the suit land. The plaintiff and one Sh. Prem Chand (PW-2) have stated that in March, 1999 the defendants forcibly raised the construction over the suit land. PW-3 Smt. Maya Devi, Assistant Panchayat Secretary, and PW-4 Sh. Jeet Ram, the then President of Gram Panchayant, Kakar, have been examined to substantiate the order of Gram Panchayat, Ext. PW-4/A, which demonstrates that on 15.03.1999 the Panchayat asked the parties to demarcate the land before raising any construction. Ext. PW-4/A depicts that father of the plaintiff, Sh. Relu Ram had instituted the case against the defendant, Sh. Diwan Chand, before the Panchayat. Therefore, it stands established that in March, 1999 the defendants tried to raise some construction. PW-4/A, which demonstrates that on 15.03.1999 the Panchayat asked the parties to demarcate the land before raising any construction. Ext. PW-4/A depicts that father of the plaintiff, Sh. Relu Ram had instituted the case against the defendant, Sh. Diwan Chand, before the Panchayat. Therefore, it stands established that in March, 1999 the defendants tried to raise some construction. However, this fact is not sufficient to prove that defendant had raised construction of his house over Khasra No. 1043. 8. Defendant himself stepped into the witness box and has also examined DW-2, Sh. Nand Lal. DW-2 has stated that defendant, Sh. Diwan Chand, constructed his shop in the year 1985 and thereafter no construction was raised by him. 9. On 23.6.2000, the Local Commissioner, Sh. Laxmi Dutt (PW-5) visited that spot and demarcated the suit land. The report of Local Commissioner is Ext. PW-5/A and tatima of the spot is Ext. PW-5/B which clearly depicts that the house of the defendant was over 3 Surshai of the suit land comprising in Khasra No. 1043/1. Objections to the report of Local Commissioner were filed by the defendants wherein the defendants has alleged that the Local Commissioner did not demarcate the suit land as per the mandate of the law. No permanent (pakka) points were located, whereas the report Ext. PW-5/A reveals that 3 permanent (pakka) points, viz., ABC were fixed on the spot. However, nothing is emanating from the report that how these permanent (pakka) points were fixed and report is completely silent whether these points were on the spot since last settlement or not. The Local Commissioner (PW-5) in his cross-examination stated that copy of musabi was not provided to him, therefore, he did not demarcate the suit land with help of musabi. It is beyond the scope of imagination that in the absence of musabi how the Local Commissioner ascertained and fixed 3 permanent (pakka) points on the spot and tallied those points with the musabi. As the fixation of 3 permanent (pakka) points by the Local Commissioner is erroneous, the entire measurement was carried out by Local Commissioner has no legal sanctity. As the Local Commissioner identified very small area to the extent of 3 sarshai, as encroached area, therefore, fixation of 3 permanent (pakka) points by him is imperative. As the fixation of 3 permanent (pakka) points by the Local Commissioner is erroneous, the entire measurement was carried out by Local Commissioner has no legal sanctity. As the Local Commissioner identified very small area to the extent of 3 sarshai, as encroached area, therefore, fixation of 3 permanent (pakka) points by him is imperative. How 3 permanent (pakka) points were fixed by the Local Commissioner in the absence of musabi is a fact, which can not at all ignored at any cost. The report Ext. PW-5/A, nowhere reveals that whether triangular measurement was carried out or not and whether the perpendiculars were drawn on the spot or not. As a result, the objection filed by the defendant to the report of the Local Commissioner are of greater value and the same can not be avoided. Therefore, the report of the Local Commissioner is of no value and the same was rightly discarded by learned Trial Court and wrongly relied by learned Appellate Court. 10. Under these circumstances, the substantial question of law, as framed, is answered by holding that findings arrived at by the learned First Appellant Court are not sustainable as no reliance can be placed on the report of the Local Commissioner, Ext. PW-5/A and the judgment and decree passed by the learned First Appellant Court on the strength of the report of Local Commissioner, who was not having musabi for fixing 3 permanent (pakka) points at the time of demarcation of the suit land is illegal and erroneous, specially when the encroachment which has been calculated only the extent of 3 biswansis. Accordingly, the appeal is allowed and the judgment and decree passed by the learned lower Appellate Court is set aside and the Judgment and decree passed by the learned Trial Court dismissing the suit of the plaintiff is upheld. In the peculiar fact and circumstance of the case, the parties are directed to bear their own costs. 11. In view of the above discussion, the appeal stands disposed of, as also pending applications, if any.