JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellant against the judgment and decree dated 13.12.2005, passed by the learned District Judge(Forests), Shimla, in Civil Appeal No.27-S/13 of 2005/04, whereby the learned appellate Court reversed the judgment and decree passed by the learned trial Court in Civil Suit No.184/1 of 1997, and thereby decreed the suit of the plaintiff with the prayer to set aside the impugned judgment and decree passed by the learned lower Appellate Court and to restore the judgment and decree passed by the learned trial Court dismissing the suit of respondent No.1/plainitiff (hereinafter called as the ‘plaintiff’). 2. Briefly stating the facts giving rise to the present appeal are that the defendant No.1, now respondent No.2 (hereinafter called as defendant No.1) allotted the space in question, i.e. the suit land (hereinafter called the ‘suit land’) to the plaintiff (hereinafter called as the ‘plaintiff’) on Tehbazari, where the plaintiff has been carrying his business of sale of readymade garments/rags for the last more than 20 years and he has been earning minimum Rs.200/- per day. The appellant/defendant No.1 (hereinafter called as ‘defendant No.1’) in the suit land installed a water tank and hence the suit. Thus defendant No.1 deprived the plaintiff of his livelihood. It has been contended that on 18.10.1996, the plaintiff served a notice upon defendant No.1 for removal of the encroachment made by him. Defendant No.1 after receiving such notice, removed the water tank, but after about four days, he again illegally and forcibly installed the water tank on the space in question and thereby dispossessed the plaintiff. The plaintiff had already paid Tehbazari to defendant No.2 up to 31.3.1998. The plaintiff again served another notice dated 22.5.1997 upon defendant No.2 whereby defendant No.2 was again called upon to remove the encroachment made by defendant No.1, but in vain. It has been alleged that the defendants are liable to pay compensation at the rate of Rs.200/- per day to the plaintiff and Rs.6,000/- per month till the space in question is not vacated by defendant. 3. It has been alleged that the defendants are liable to pay compensation at the rate of Rs.200/- per day to the plaintiff and Rs.6,000/- per month till the space in question is not vacated by defendant. 3. Defendant No.1 was proceeded against ex-parte, whereas defendant No.2 contested the suit, who filed written statement wherein preliminary objections were raised that the suit is not maintainable, suit is barred by limitation; and that the plaintiff has got no cause of action and the suit is bad for want of better particulars. 4. On the pleadings of the parties, the learned trial Court framed the following issues:- “1. Whether the plaintiff is entitled for the recovery of suit amount as alleged? OPP. 2. Whether the plaintiff is entitled for the damages as claimed? OPD. 3. Whether the plaintiff is entitled for the direction as prayed for ? OPP. 4. Whether the suit is not maintainable for want of notice as alleged? OPD-2. 5. Whether the suit is barred by limitation? OPD-2. 6. Whether the plaintiff has no cause of action against the defendant No.2? OPD. 7. Relief.” 5. The learned trial Court decided Issues No.1 to 3 against the plaintiff and Issues No.4 & 5 against the defendants and Issue No.6 in favour of the defendants and dismisses the suit. 6. Feeling aggrieved and dissatisfied by the judgment and decree passed by the learned trial Court, the plaintiff filed an appeal before the learned lower Appellate Court. Learned lower Appellate Court allowed the appeal for the damages to the tune of Rs.20,000/- against the present appellant/defendant No.1 along with future damages at the rate of Rs.2000/- per month from the date of decree till the suit land is vacated after removing the water tank. Hence, the present appeal, which was admitted on the following question of law:- “Whether the first Appellant Court has gone wrong in accepting the appeal of the plaintiff simply for the reason that the appellant did not file any written statement and did not cross-examine PWs 3 and 4?” 7. I have heard the learned counsel for the parties and have also gone through the record of the case. 8. I have heard the learned counsel for the parties and have also gone through the record of the case. 8. Learned counsel for the appellant has argued that it has come on record that the suit land was still lying vacant where the Tehbazari rights were given to the plaintiff by the respondent No.2 and the learned lower Appellate Court has not taken this fact into consideration while decreeing the suit and allowing the appeal. On the other hand, Shri R.K. Bawa, learned Senior Advocate appearing for respondent No.1 has argued that the judgment and decree of the lower appellant Court is just reasoned and after appreciating the facts on record it has come on record that the defendant No.1 installed water tank at the place where the plaintiff was given Tehbazari rights by respondent No.2 and the place where he was making his earning by selling rags and readymade garments. He has referred Ext.PW1/A and Ext.PW1/B to prove the right as well and other evidence on record. In rebuttal, learned counsel for the appellant has argued that the learned lower Appellate Court has simply allowed the appeal for the reason that defendant No.1 has not contested the suit. To appreciate the arguments of the learned counsel for the parties, I have gone through the record in detail. Ext. PW1/A is the proof of Tehbazari rights given to the plaintiff by defendant No.2. Though, there is a question in the cross-examination of the plaintiff that PW1/A, the word ‘Rag’ has written in different handwritings as a type of business but it is of no consequence as the Tehbazari right is given to the plaintiff. 9. Now, the question whether the plaintiff has Tehbazari rights to sell rags etc. at the place where the water tank is installed by defendant No.1, i.e. the place adjoining the Temple a religious place are the suit land where the Tehbazari rights are granted is still lying vacant was the moot question for determination. 10. To prove its case, the plaintiff has examined himself as PW1 and deposed that he had been running business of ready made garments/rags in the space in question since the year 1983 as the space was allotted to him by defendant No.2 on Tehbazari. It has been alleged that he was earning livelihood for his family from the said business and he was also income tax payee. It has been alleged that he was earning livelihood for his family from the said business and he was also income tax payee. It has been deposed that defendant No.1 on 22.9.1996 dispossessed him from the space in question and installed water tank. A notice Ext.PW1/E was served upon defendant No.2 and defendant No.1 removed the water tank and after one week defendant No.1 again installed the water tank and plaintiff served notice Ext.PW1/H upon the Municipal Corporation, Shimla i.e. defendant No.2. He further deposed that he is suffering loss to the tune of Rs.200/- per day as he could not run business of readymade garments/rags at the space in question. He further stated that he was entitled for the possession of the space in question as also the damages from the defendants at the rate of Rs.200/- per day. 11. PW2 Gulam Mohamad, PW3 Tara Chand and PW4 Sher Singh also deposed that the plaintiff was running business of readymade garments/rags at the space under reference and that the plaintiff was dispossessed by defendant No.1, who has installed a water tank on the same place. PW5 C. Balvinder Singh deposed as per the record that the plaintiff lodged a report on 23.9.1996 against defendant No.1 regarding dismantling of shed and wall, but the FIR was cancelled as the civil suit qua dismantling of wall and shed was pending in the Court. 12. Jyoti Parkash, DW1, an employee of the Municipal Corporation, Shimla deposed that the space in question was allotted to the plaintiff by the Municipal “Corporation, Shimla. He has categorically stated that the plaintiff has not been dispossessed by the defendants. He has further stated that defendant No.1 has installed the water tank on the adjoining land owned by the temple. He has also stated that the water tank has been installed for the use of general public and that the space in question allotted to the plaintiff is lying vacant, but the plaintiff is not using the same for running his business. 13. It is admitted fact that the space in question was allotted to the plaintiff on Tehbazari, area of which is 1x1.5 mtrs. As per evidence led by the plaintiff, he was dispossessed by the defendant No.1 from the space in question and a water tank has been installed thereon. 13. It is admitted fact that the space in question was allotted to the plaintiff on Tehbazari, area of which is 1x1.5 mtrs. As per evidence led by the plaintiff, he was dispossessed by the defendant No.1 from the space in question and a water tank has been installed thereon. While as per the statement of defendant No.1 the water tank has been installed on the adjoining land which has been owned by the temple. Defendant No.1 did not installed water tank for his private use, but the same has been installed for the use of general public. Therefore, in view of the statement of DW1, it seems that the water tank in question has been installed on the adjoining land owned by the temple. The space in question allotted to the plaintiff is still lying vacant. 14. As DW1 has specifically stated in his cross examination that the water tank was installed by defendant No.1 on the adjoining land owned by the Temple i.e. defendant No.1 and the water tank is not installed for the private use but it is installed for the use by the general public. So, defendant No.2, who is officer of the defendant No.2 and defendant No.2 has given Tehbazari right to the plaintiff. It is only defendant No.2, who knows where Tehbazari rights have been given to the plaintiff. DW1 i.e. the Officer of defendant No.2 has stated in the Court that Tehbazari right was given for the adjoining land and the land where the water tank is installed for the use of the general public is the land of defendant No.1 i.e. Temple. There cannot be any other better person to identify the land as he is an employee of defendant No.2 and an independent person having no bias towards the plaintiff or towards defendant No.1. It has come on record that the suit land where the Tehbazari right has been granted to the plaintiff is still lying vacant. There cannot be any other better person to identify the land as he is an employee of defendant No.2 and an independent person having no bias towards the plaintiff or towards defendant No.1. It has come on record that the suit land where the Tehbazari right has been granted to the plaintiff is still lying vacant. So, in these circumstances, the findings of the Court below asking defendant No.1 to pay damages to the tune of Rs.20,000/- and also at the rate of Rs.200/- per day from the date of judgment and decree of the appellate Court till removal of the water Tank are perverse as the Court has not taken into consideration the evidence, which has come on record and the findings arrived at by the learned lower Appellate Court are perverse. Even if defendant No.1 has not chosen to contest the suit the result cannot be against defendant without there being evidence on record to that extent as it has come on record that the suit land where the Tehbazari right was granted to the plaintiff is still unoccupied and the plaintiff can start his business on that land and could have continued his business on that land, no damages can be put to defendant No.1. The judgment and decree of the lower Appellate Court is thus required to be set aside and the question of law framed is answered holding that the findings of the lower Appellate Court are perverse and just on the basis of the fact that defendant No.1 has not chosen to contest the suit and so not sustainable. 15. Resultantly, the regular second appeal is allowed and the judgment and decree passed by the lower Appellate Court is set aside and the judgment and decree passed by the learned trial Court is affirmed. However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs. 16. Pending applications if any, also stands disposed of.