JUDGMENT : Sandeep Sharma, J. 1. Instant Regular Second Appeal under Section 100 of the Civil Procedure Code has been filed against Judgment and decree dated 1.12.2004 passed by District Judge, Hamirpur, HP in Civil Appeal No. 43 of 2002, whereby judgment and decree dated 28.2.2002 passed by Sub-Judge 1st Class (I), Hamirpur, HP, in Civil Suit No. 264 of 1994 have been set aside, whereby suit of the plaintiffs for permanent prohibitory injunction and, in the alternative, for possession by way of demolition, was decreed. 2. Briefly stated facts as emerge from record are that the appellants-plaintiffs (plaintiffs’ hereafter) filed a suit for permanent prohibitory injunction and, in the alternative, for possession, in the court of learned Sub-Judge 1st Class, Hamirpur averring therein that suit land comprised in Khata No. 39, Khatauni No. 42, Khasra No. 2 measuring 1 Kanal 5 Marla as entered in the Jamabandi for the year 1986-87, situated in Tika Ruttain, Mauza Bara, Tehsil Nadaun, District Hamirpur (H.P.) (suit land, hereafter) is in their ownership and possession. Plaintiffs further averred in the plaint that defendants are strangers to the suit land and are owner of adjoining land as such have no lawful right to interfere in the peaceful possession of the plaintiffs. Plaintiffs further averred in the plaint that in the year 1993, defendants started damaging old boundaries by digging the land and despite there being objections, they kept on doing so. Plaintiffs further stated that defendants claimed that they were raising construction in their own land. Plaintiffs applied for demarcation, which was conducted on 10.8.1993, wherein, defendants were found to have encroached upon some portion of suit land shown as Khasra No. 2/1 measuring 1 Marla as per Tatima attached with the plaint. On the basis of aforesaid demarcation report, plaintiffs requested defendants to vacate the possession of suit land, but in vain. Defendants did not accept the request of plaintiffs to vacate the premises or to part with the encroached portion of suit land, as such, cause of action accrued in favour of the plaintiffs in the year 1993, when defendants allegedly started interference and demolished boundaries of suit land. In the aforesaid background, plaintiffs filed suit as mentioned above, praying therein for decree of permanent prohibitory injunction and in the alternative, for possession, in case, defendants are found in possession of suit land. 3. In the aforesaid background, plaintiffs filed suit as mentioned above, praying therein for decree of permanent prohibitory injunction and in the alternative, for possession, in case, defendants are found in possession of suit land. 3. Defendants, by way of filing written statement, refuted aforesaid claim of the plaintiffs by raising preliminary objections qua estoppel, non-joinder of necessary parties and proper valuation. Defendants also claimed that one kitchen over the land comprising of Khasra No. 3 min and new Khasra No. 175/3, measuring 2 Marla situated in Tika Ruttain, Mauza Bara, Tehsil Nadaun, is owned and possessed by the defendants. Defendants further claimed that aforesaid structure is in existence at the spot for the last 100 years and plaintiffs have shown this built up kitchen room in the suit land wrongly, in connivance with the settlement staff at the back of the defendants. Defendants further contended that plaintiffs have purchased suit land from Bakshi Ram son of Shri Jalam, resident of Tikka Ruttain, Mauza Bara, Tehsil Nadaun, District Hamirpur, HP in 1974-75 and at that time, aforesaid kitchen of the defendants was existing at the spot also. Defendants further contended that during his life time, Bakshi Ram as well as plaintiffs got suit land demarcated several times. As per the defendant, kitchen of the defendants over the land in Khasra No. 175/3 was part of old Khasra No. 3 min and PWD authorities also found this portion of the land measuring 2 Marla in Khasra No. 3 min in the process of acquisition of this land vide notification dated 28.1.74. Further, the defendants in the written statement claimed that if aforesaid facts are not proved on record, even then, defendants have become owners by way of adverse possession of suit land measuring 2 Marla as defendants are coming in possession of suit land, for the last 100 years and there possession over the same is open, hostile, continuous, interrupted and to the knowledge of the real owners. In the aforesaid background, defendants prayed that the suit may be dismissed. 4. Plaintiffs, by way of replication, reasserted the contents of the plant and denied that of the written statement. 5. Learned trial Court, on the basis of pleadings of the parties, framed following issues: “1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP 2. 4. Plaintiffs, by way of replication, reasserted the contents of the plant and denied that of the written statement. 5. Learned trial Court, on the basis of pleadings of the parties, framed following issues: “1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP 2. Whether the plaintiffs in the alternative are entitled to the relief of possession as prayed? OPP 3. Whether the defendants have become owners of the suit land by way of adverse possession as alleged in para No. 2 of the written statement? OPD 4. Whether the plaintiffs are estopped by their acts and conduct from filing the suit? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Relief.” 6. Subsequently vide judgment and decree dated 28.2.2002, learned trial Court decreed the suit of the plaintiffs and passed decree of permanent prohibitory injunction in their favour and against the defendants, restraining them from interfering/raising any construction over the suit land comprised of Khata No. 39, Khatauni No. 42, Khasra No. 2, measuring 1 Kanal 5 Marla, as per Jamabandi for the year 1986-87, situated in Tika Ruttain, Tappa Bara, Tehsil Nadaun, District Hamirpur, HP. Defendants were further directed to handover vacant possession of encroached portion of suit land compromised in Khasra No. 2/1 measuring 0-1 Marla (6 Sarsahi), within a period of three months. 7. Defendant, feeling aggrieved by the aforesaid judgment and decree, preferred an appeal under Section 96 CPC before the District Judge, Hamirpur, which came to be registered as Civil Appeal No. 43 of 2002, who, vide judgment and decree dated 1.12.2004, while accepting the appeal preferred by the defendants, set aside the judgment and decree passed by trial Court. Hence, this Regular Second Appeal. 8. Instant Regular Second Appeal was admitted by this Court on 16.3.2005, on the following substantial questions of law: “1. Whether the respondents having raised plea of adverse possession over the suit land and they having failed to established the same therefore, the appellants are entitled to the relief as claimed in the suit. 2. Whether the demarcation report Exhibit PW-2/A spot map Exhibit PW-2/B prepared by PW-3 Shri Jagar Nath Kanungo having not being challenged by the respondent, therefore suit was rightly decreed by the Trial Court. 3. 2. Whether the demarcation report Exhibit PW-2/A spot map Exhibit PW-2/B prepared by PW-3 Shri Jagar Nath Kanungo having not being challenged by the respondent, therefore suit was rightly decreed by the Trial Court. 3. Whether their being variation in the demarcation report Exhibit PW2/A as given by the Field Kanungo and in the demarcation report Exhibit PW-4/A as given by the Local Commissioner therefore fresh orders were require to be passed for appointment of fresh Local Commissioner as per the law reported in AIR 2003 HP 87 . 9. I have heard the learned counsel representing the parties and gone through the record of the case carefully. 10. After having carefully perused impugned judgment and decree passed by first appellate Court as well as submissions having been made by the learned counsel representing the parties, this Court intends to take up substantial question of law No. 1, at the first instance. 11. During the proceedings of the case, this Court had an occasion to peruse pleadings as well as evidence adduced on record by respective parties. Careful perusal of judgment and decree passed by learned trial Court dated 28.2.2002, suggests that specific issue i.e. issue No. 3, which is reproduced below, which was framed on the basis of pleadings of parties: “3. Whether the defendants have become owners of the suit land by way of adverse possession as alleged in para No. 2 of the written statement? OPD.” 12. Learned trial Court, on the basis of evidence adduced on record by the respective parties, decided aforesaid issue against the defendants. Perusal of findings returned by trial Court qua aforesaid issue clearly suggests that there was no evidence led on record by the defendants with regard to their claim of having become owners by way of adverse possession. None of the defendants’ witnesses including defendant No. 1, stated anything specific with regard to manner and time, in which they came into adverse possession of suit land. Rather, a careful perusal of written statement having been filed by the defendants suggests that plea of adverse possession was taken in the alternative solely with a view to defeat the claim of the plaintiffs, whom, defendants admitted to be owner of the suit land bearing Khasra No. 2. Rather, a careful perusal of written statement having been filed by the defendants suggests that plea of adverse possession was taken in the alternative solely with a view to defeat the claim of the plaintiffs, whom, defendants admitted to be owner of the suit land bearing Khasra No. 2. Defendants, in their written statement, in para-2 of written statement on merits, stated as under: “It is submitted that if the aforesaid facts are not proved on record then the defendants have become owners by way of adverse possession of the said portion of 2 marla of land as the defendants are coming in possession by way of construction of kitchen room for the last 100 year and the possession of the defendant is open, hostile, continuous, uninterrupted and to the knowledge of the rightful owners.” 13. But, interestingly, aforesaid submissions as contained in the written statement were not proved in accordance with law by the defendants by leading cogent and convincing evidence, rather, defendant No. 1 himself, while appearing in the witness box admitted that the factum with regard to ownership of the plaintiffs qua suit land came in their knowledge during the pendency of the trial. Apart from above, defendants in their written statement in para 2, have stated as under: “2...........It may be submitted that the plaintiffs have purchased the suit land from Shri Bakshi Ram son of Jalam resident of Ruttain, Mouza Bara, Tehsil Nadaun District Hamirpur (H.P.) in the year 1974-75 and the aforesaid kitchen of the replying defendants was situated on the spot at that time as stated above....... 14. It may be noticed that the dispute is with regard to kitchen, which, as per plaintiffs exists over the land owned and possessed by them, in Khasra No. 2. This Court, having carefully perused the averment contained in the written statement as well as evidence led on record by the defendants, sees no illegality or infirmity in the findings returned by the learned trial Court that defendants were not able to prove on record that they have become owners of the suit land by way of adverse possession. 15. This Court, having carefully perused the averment contained in the written statement as well as evidence led on record by the defendants, sees no illegality or infirmity in the findings returned by the learned trial Court that defendants were not able to prove on record that they have become owners of the suit land by way of adverse possession. 15. Interestingly, defendants, who had suffered decree, preferred appeal before the District Judge, which is the subject matter of the present appeal, failed to lay challenge, if any, to the findings, returned by the learned trial Court, with regard to their claim that they have become owners by way of adverse possession qua suit land. Otherwise also, careful perusal of impugned judgment passed by first appellate Court nowhere reveals that findings returned by learned trial Court with regard to claim of defendants having become owners by way of adverse possession, were set aside by the learned first appellate Court, rather, the first appellate Court set aside the judgment of trial Court taking into consideration demarcation report submitted by PW-4 Laxmi Dutt, Court Commissioner. 16. Hence, this Court, after careful perusal of judgments passed by both the learned Courts below, sees no illegality or infirmity in the judgment and decree passed by learned trial Court, specifically with regard to findings qua issue of adverse possession. 17. Substantial question of law No. 1 is answered accordingly. 18. Mr. G.D. Verma, learned Senior Advocate duly assisted by Mr. B.C. Verma, Advocate, on behalf of the plaintiffs stated that since findings returned on the issue of adverse possession have attained finality, natural consequence is that the plaintiffs are bound to be declared owners of suit land. To substantiate his aforesaid claim, Mr. Verma, also invited attention of this Court to the submissions having been made by the defendants in the written statement, which have been already taken note of by this Court, while deciding substantial question of law No. 1, to demonstrate that once defendants had admitted plaintiffs to be owner of the suit land, nothing was left to be adjudicated by the courts below, as far as ownership, as was claimed by way of suit having been filed by plaintiffs is concerned. As per Mr. As per Mr. Verma, in view of specific findings returned qua issue of adverse possession, as claimed by the defendants, no reliance, if any, could be placed by the courts below upon the demarcation reports placed on record by respective parties. 19. Mr. Bhuvnesh Sharma, learned counsel representing the defendants, while refuting aforesaid contentions having been made by Mr. G.D. Verma, learned Senior Advocate, strenuously argued that plea of adverse possession was taken in the alternative and it was to be only applied in case of plaintiffs not succeeding in establishing their claim with regard to ownership of the suit land. He further stated that defendants never admitted plaintiffs to be owner-in-possession of the spot, over which disputed kitchen existed, rather, it is admitted case of the defendants that the plaintiffs are owner-in-possession of Khasra No. 2. Mr. Sharma, fairly conceded that no reliance could be placed by the courts below on the demarcation reports placed on record by the respective parties, because, same were not in accordance with law. But, Mr. Sharma, stated that since plaintiffs failed to establish on record that they are owner-in-possession of the land, over which kitchen existed, learned District Judge, rightly set aside the judgment and decree passed by trial Court. 20. After having carefully perused the material adduced on record, especially specific findings returned by the courts below with regard to claim of the defendants that they have become owners by way of adverse possession, I am afraid that contentions having been raised by Mr. Sharma, can be accepted. Once, defendants were not held to be in adverse possession of the suit land by the trial Court, plaintiffs were rightly declared owners of the suit land, as such, there was no occasion for the first appellate court to take into consideration, other evidence, be it ocular or documentary, adduced on record by the respective parties. It stands duly proved on record, which has not been otherwise controverted by the defendants that the plaintiffs are owners of the suit land comprised in Khasra No. 2. As far as issue with regard to existence of kitchen over suit land is concerned, defendants themselves have admitted in the written statement that at the time of purchase of suit land by the plaintiffs from Shri Bakshi Ram, kitchen was existing at the spot. As far as issue with regard to existence of kitchen over suit land is concerned, defendants themselves have admitted in the written statement that at the time of purchase of suit land by the plaintiffs from Shri Bakshi Ram, kitchen was existing at the spot. Similarly, DW-1 has admitted in the cross-examination that factum with regard to ownership of the plaintiffs qua suit land came in their knowledge after filing of the suit. 21. After bestowing my thoughtful consideration to the material adduced on record by the parties as well as aforesaid submissions having been made by the learned counsel representing the parties, I have no hesitation to conclude that learned first appellate Court, while deciding controversy at hand, has gone astray and has wrongly based its findings on demarcation report given by Laxmi Dutt, Court Commissioner, which was, admittedly, not relevant in view of specific findings returned by the trial Court on the plea of adverse possession having been raised by the defendants. Otherwise also, it appears that there is no dispute as such between the parties, because, it is admitted case of the defendants that the plaintiffs are owners of the suit land bearing Khasra No. 2, which is the subject matter of the instant proceedings. 22. Remaining substantial questions of law are also answered accordingly. 23. Accordingly, the instant appeal is allowed. Judgment and decree dated 1.12.2004 passed by District Judge, Hamirpur, HP in Civil Appeal No. 43 of 2002 are set aside and judgment and decree dated 28.2.2002 passed by Sub-Judge 1st Class (I), Hamirpur, HP, in Civil Suit No. 264 of 1994 are restored. 24. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated. No order as to costs.