JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this appeal, appellants have challenged the judgment and decree passed by the Court of learned Additional District Judge-I, Kangra at Dharamshala in Civil Appeal No. 98-P/04, vide which learned Appellate Court while dismissing the appeal so filed by the present appellants upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division) Court No. 2, Palampur in Civil Suit No. 93/2000 dated 30.06.2004, whereby learned trial Court had decreed the suit of the plaintiff therein, in the following terms:- "In view of the detailed discussions and the reasons specified, the suit of the plaintiff deserves to be decreed and is accordingly, decreed with cost. The plaintiff is granted a decree of possession of shop situate in Khata No. 637 min, khatoni No. 1250, khasra No. 2675, land measuring 0-00-28 Hects., situate in Mohal Ghuggar, Tehsil Palampur, Distt. Kagra (H.P.) by ejectment of the defendants from the same. Decree be drawn accordingly. The file after it''s due completion be consigned to record room." 2. Brief facts necessary for adjudication of the present appeal are that respondent/plaintiff hereinafter referred to as the plaintiff filed suit for possession of shop comprised in Khata No. 637 min, Khatoni No. 1250, Khasra No. 2675 measuring 0-00-28 Hects. situated in Mohal Ghuggar Ram Chowk, Tehsil Palampur, District Kangra, i.e. suit premises, by way of ejectment of the defendants on the ground that the shop in issue was rented out to late Narayan Bos, husband of defendant No. 1 and father of other defendants by the plaintiff, who was owner of the same. According to the plaintiff, his son was unemployed and thus the shop was required for his use. Further, as per the plaintiff, defendants were serving in different departments and the shop in fact was locked since the death of Narayan Bos. Plaintiff served a notice under section 106 of Transfer of Property Act and terminated the tenancy of the defendants. Notice was duly received by defendant No. 5 but the other defendants refused to receive the same. It was further case of the plaintiff that the defendants were not paying rent, which was due from the defendants since January, 1998. On these basis, he had prayed for decree of possession of the suit premises by ejectment of the defendants. 3. Notice was duly received by defendant No. 5 but the other defendants refused to receive the same. It was further case of the plaintiff that the defendants were not paying rent, which was due from the defendants since January, 1998. On these basis, he had prayed for decree of possession of the suit premises by ejectment of the defendants. 3. The suit was contested by the defendants, who inter alia, took the stand that Narayaan Bos was not a tenant in the shop of the plaintiff and that it were defendants No. 1 to 4 who were in possession of the shop which was constructed by the predecessor-in-interest of the replying defendants more than 30 years ago. According to the defendants, the plaintiff had nothing to do with the suit premises and he had no right, title or interest over the same as defendants were not his tenants. According to the defendants, the claim of the plaintiff was false and frivolous. 4. On the basis of the pleadings of the parties, learned trial Court framed the following issues:- "1. Whether plaintiff is entitled to the decree of possession of shop by ejectment, as alleged?... OPP 2. Whether suit of the plaintiff is not maintainable?... OPD 3. Whether plaintiff has no locus standi?... OPD 4. Whether plaintiff is estopped by his act and conduct from filing the present suit?... OPD 5. Whether plaintiff has no cause of action?... OPD 6. Relief. 5. On the basis of evidence led on record by the respective parties, learned trial Court returned the following findings to the issues so framed:- issue No. 1 Yes. issue No. 2 No. issue No. 3 No. issue No. 4 No. issue No. 5 No. Relief. The suit of the plaintiff is decreed with costs as per operative part of this judgment. The suit of the plaintiff is decreed with costs as per operative part of this judgment. 6. Learned trial Court held that the evidence on record demonstrated that the plaintiff was the owner of the suit premises and defendants were in possession of the same whose tenancy stood terminated by the plaintiff by issuance of a proper notice under section 106 of the Transfer of Property Act. Accordingly it decreed the suit. It is pertinent to mention that while decreeing the suit, an observation was made by learned trial Court that a perusal of Ext. Accordingly it decreed the suit. It is pertinent to mention that while decreeing the suit, an observation was made by learned trial Court that a perusal of Ext. P-1 i.e. copy of Jamabandi for the year 1997-98 demonstrated that Khasra No. 2675 was owned by the Government of Himachal Pradesh and possession thereof was shown to be with Kahana. 7. Feeling aggrieved by the judgment so passed by learned trial Court, defendants therein filed an appeal. 8. Learned Appellate Court while dismissing the appeal, held that the evidence demonstrated that the plaintiff was owner of the suit premises and the same was in possession of the defendants as tenants. Learned Appellate Court negated the plea of the appellants therein that the suit land was not situated on Government land. 9. Feeling aggrieved, they have filed this appeal, which was admitted on 13.08.2008 on the following substantial question of law:- "When the defendants have been ordered to be ejected under Section 163 of the HP Land Revenue Act from the shop in Khasra No. 2674, whether the Ld. Courts below are justified to hold that the very shop is in Khasra No. 2675 owned by the plaintiff?" 10. During the pendency of the present appeal, on 23.11.2016, this Court had passed the following order:- "When this case was called for arguments today, Mr. Sharma learned Senior Counsel appearing for the appellants/defendants pointed out that the perversity with the judgments and decrees passed by both learned courts below was that both learned courts below erred in not appreciating that the suit property i.e. the shop was situated at Khasra No. 2674 which is Government land and not on Khasra No. 2675, as was pleaded by the respondent/plaintiff. Mr. Sharma further submits that in fact in this regard proceedings stood initiated against the appellants/defendants under the provisions of Section 163 of H.P. Land Revenue Act and ejectment orders also have been passed by the appropriate authority against him. Mr. Khajuria learned counsel for respondent/plaintiff submitted that probably these contentions are not now available to the appellants because no evidence was led by the appellants before learned trial court to substantiate its contention that the shop in question was not situated on the private land of the plaintiff but was situated on the Government land. Mr. Khajuria learned counsel for respondent/plaintiff submitted that probably these contentions are not now available to the appellants because no evidence was led by the appellants before learned trial court to substantiate its contention that the shop in question was not situated on the private land of the plaintiff but was situated on the Government land. Be that as it may, in order to ascertain this, let Tehsildar Palampur, District Kangra demarcate the area where the shop in dispute is situated by issuing advance notices in this regard to the respective parties and submit its report to the Court. Demarcation of the land in issue shall be carried out by Tehsildar Palampur within three weeks from today and report thereof be furnished to this Court within a week thereafter. It shall be specified in the report that the shop in dispute is upon which particular khasra number and who is the owner of said khasra number. Learned Deputy Advocate General is requested to convey the order to Tehsildar and ensure compliance of the same. Appellants shall deposit an amount of Rs. 5,000/- with Tehsildar Palampur to meet expenses to be incurred in the course of demarcation within one week from today. List on 30.12.2016. 11. Pursuant thereto, Local Commissioner (Tehsildar, Palampur), submitted his report which reads as under: "The Hon''ble High Court of Himachal Pradesh in RSA No. 137/2016 titled as Sh. Sunil Kumar & others v. Sh. Jhomphi Ram on 23.11.2016 pleased to direct to undersigned to demarcate the area where shop was situated i.e. whether the shop was situated in Khasra No. 2674, which is Govt. Land and not on 2675 as pleaded by parties with special mention in the report that shop in dispute is upon which Khasra Number and who is owner of said Khasra Number. In compliance to the directions of Hon''ble High Court, I visited the spot first on 14.12.2016 along with Field Kanungo and Patwari, PC Aima (In-charge P.C. Chowki) in Mohal Ghuggar, P.O. Chowki, Tehsil Palampur, Distt. Kangra, H.P. Both the parties were informed in advance. Appellants were issued notices on the addresses as mentioned in RSA No. 137. But the processing agency reported that the applicants were not residing at Holta Camp Tehsil Palampur, Distt. Kangra, (H.P.) Sh. Jhomphi Ram received the notice personally. Anyhow, on spot appellant No. 1 Sh. Sunil Kumar and Sh. Shekhar Pal s/o Sh. Appellants were issued notices on the addresses as mentioned in RSA No. 137. But the processing agency reported that the applicants were not residing at Holta Camp Tehsil Palampur, Distt. Kangra, (H.P.) Sh. Jhomphi Ram received the notice personally. Anyhow, on spot appellant No. 1 Sh. Sunil Kumar and Sh. Shekhar Pal s/o Sh. Vinod Kumar (appellant No. 4) and respondent Sh. Jhomphi Ram appeared on 14.11.2016. Sh. Sunil Kumar and Shekhar Pal S/o Vinod Kumar stated that they could not produce copy of Mussavi and requested that demarcation be fixed for 18.11.2016 and they will produce other appellants themselves and also copy of Mussavi. Respondent Sh. Jhomphi Ram also stated that appellants had not produced copy of Mussavi and so he will appear on spot on 18.12.2016. So, demarcation was fixed for 18.12.2016. On 18.12.2016, I reached on spot in Mohal Ghuggar, Tehsil Palampur, Distt. Kangra, (H.P.) along with Patwari Halqa Aima (Incharge P.C Chowki). Appellants namely Sh. Sunil Kumar, Sh. Jonsar Pal, Sh. Anil Pal and Sh. Vinod Kumar sons of Sh. Narain Swaroop residents of Lohna, Tehsil Palampur were present on spot. Respondent Sh. Jhomphi Ram S/o Sh. Kahna Ram resident of Mohal Ghuggar was also present on spot. The order of Hon''ble High Court was explained to them in vernacular. First of all the accuracy of measuring chain was ascertained with the help of Paimana Pital. Thereafter, parties were asked to tell permanent points of their satisfaction and belief. They told that structures/shops constructed over Khasra No. 2672 to 2679 were permanent and undisturbed since settlement and therefore, the demarcation be done from any of these Khasra numbers and they would have no objection. Khasra No. 2671 in front of Khasra No. 2672, 2673, 2674, 2675, 2676, 2677, 2678, 2679 is owned by State of H.P. and in possession of Public Works Department and classified as Gair Mumkin Sarak. So, Khasra No. 2671 is road and on Palampur Dharamshala via Nagri road. Opposite to Khasra No. 2672 to 2679 i.e. on other side of road, there are buildings/shops. Behind Khasra No. 2674 to 2679, Khasra No. 2865/2680, 2867/2680 have been allotted and there are also constructions almost. Therefore, demarcation was started from Khasra No. 2679. So, Khasra No. 2671 is road and on Palampur Dharamshala via Nagri road. Opposite to Khasra No. 2672 to 2679 i.e. on other side of road, there are buildings/shops. Behind Khasra No. 2674 to 2679, Khasra No. 2865/2680, 2867/2680 have been allotted and there are also constructions almost. Therefore, demarcation was started from Khasra No. 2679. This No. Khasra is entered in ownership of State of H.P. and in the column of possession Jagdish s/o Dharmu is recorded as X. From Point A to B, 4 meters were measured reaching the dividing line of Khasra No. 2679 and 2678. Khasra No. 2678 is also owned by State of H.P. and in cultivation column, it is recorded as Udmi s/o Darshanu X. Parties present on spot admitted point ''B'' as correct and it also conformed the revenue record. From point B to C, 3 meters were measured and it also conformed the revenue record. Point C is dividing point of Khasra No. 2677 and 2678. Parties and other inhabitants present on spot admitted it correct. From point C to D, 3 meters were measured, which conformed the revenue record. Parties again admitted this point as correct. Point D is dividing line of Khasra No. 2676 and 2675. Khasra No. 2677 is also owned by State of H.P. and in cultivation column, it is recorded as Sh. Jonsar s/o Darshanu X. Khasra No. 2676 is also recorded in the ownership of State of H.P. and in cultivation column, Swaru r/o Bhikhu X. Now demarcation was advanced further measuring 4 meters from point D to ''E'', which conformed the revenue record. Point E is dividing line of Khasra No. 2675 and 2674. Both the parties admitted it correct. So, Khasra No. 2675 is recorded in the ownership of State of H.P. and in the column of possession, it is recorded as Kahna s/o Sita s/o Johri X. Now from point E to ''F'', 4 meters were measured, which conformed the revenue record. Both the parties and other inhabitants persons on spot admitted it correct. Line DE is road side front of Khasra No. 2675 and line EF is road side from of Khasra No. 2674. Khasra No. 2674 is recorded in the ownership of State of H.P. and in the possession of Van Vibhag Tave Bartan Bartandaran and classified as Jangal Mehfuja Gair Mehduda. Line DE is road side front of Khasra No. 2675 and line EF is road side from of Khasra No. 2674. Khasra No. 2674 is recorded in the ownership of State of H.P. and in the possession of Van Vibhag Tave Bartan Bartandaran and classified as Jangal Mehfuja Gair Mehduda. To check the correctness of Point F, the demarcation was proceeded further measuring 7 meters up to point G, which is dividing point of Khasra No. 2673 and 2672, which conformed the revenue record. Khasra No. 2673 is also entered in the ownership of State of H.P. and in possession of Van Vibhag Tave Bartan Bartandaran and classified as Jangal Mehfuja Gair Mehduda. This point was admitted correct by both the parties. Khasra No. 2673, 2674, 2675 are constructed and behind these No. Khasra, also there are constructions. So, to check other dimensions of Khasra No. 2674, 2675 the measurement was taken on slab. Point E to X, 7 meters were measured, which conformed the revenue record and was admitted correct by the parties. Points X to Y, 4 meters were measured, which conformed the revenue record and was admitted correct by parties. Point Y was joined to point E measuring 7 meters, which conformed the revenue record and was admitted as correct by both the parties. This way demarcation of Khasra No. 2674 was completed. Now from point Y to Z, 4 meters were measured, which conformed the revenue record and admitted correct by both the parties. Now point Z was joined to point D measuring 7 meters, which conformed the revenue record and admitted correct by the parties. This way demarcation of Khasra No. 2675 was completed. After conducting demarcation in aforesaid manner, the concluding submissions are as under:- 1. The shop in dispute is situated in Khasra No. 2674 area measuring 0-00-28 hect. The land is entered in the ownership of State of H.P. and in the possession of Van Vibhag Tave Bartan Bartandaran and classified as Jangal Mehfuja Gair Mehduda situated in Mohal Ghuggar, Tehsil Palampur, Distt. Kangra, (H.P.) 2. In Khasra No. 2675 area measuring 0-00-28 hect, there is also shop. This land is also entered in ownership of State of H.P. and in cultivation column these is entry of Kahna S/o Sita S/o Johari local resident X and classified as Gair Mumkin Dukan. Kangra, (H.P.) 2. In Khasra No. 2675 area measuring 0-00-28 hect, there is also shop. This land is also entered in ownership of State of H.P. and in cultivation column these is entry of Kahna S/o Sita S/o Johari local resident X and classified as Gair Mumkin Dukan. Copy of Mussavi is annexed herewith as annexure A, Copy of Jamabandi of Khasra No. 2674 as annexure B, Copy of Jamabandi of Khasra No. 2675 as Annexure C statements of parties dated 14.12.2016, as Annexure D/1, D/2, statements of parties dated 18.12.2016 as annexure E/1, E/2, E-3, notice Annexure F/1, F-2. Hence report is submitted please. 12. Objections to the demarcation report so carried by the Tehsildar stands filed by the respondent. 13. As agreed, objections so filed by the respondent, were heard along with the main appeal. 14. A perusal of Local Commissioner''s report demonstrate that the shop in dispute is situated in Khasra No. 2674 which land is entered in the ownership of State of Himachal Pradesh and in the possession of Forest Department. It is further mentioned in Local Commissioner''s report that upon Khasra No. 2675 which land is also entered in ownership of State of Himachal Pradesh, there exists another shop and in the cultivation column, entry is in favour of Kahna son of Sita and the same is classified as Gair Mumkin Dukan. 15. During the course of arguments, upon the objections so filed to the demarcation report, veracity of the said report could not be impeached by learned counsel for the respondent as it was not disputed that the demarcation was carried out by the Tehsildar not only in the presence of parties but also strictly in-consonance with the provisions dealing with the demarcation of land. Local Commissioner''s report further demonstrates that the demarcation was carried out by fixing permanent points which were not objected to by either of the parties. 16. When it is apparent from the demarcation report so submitted by Tehsildar, Palampur that the disputed land is not owned by the represented/plaintiff but the same is constructed over the land owned by the State of Himachal Pradesh, judgments and decrees passed by both learned Courts below to the contrary are not sustainable in the eyes of law. In fact evidence to this effect on record has been completely ignored by the learned Courts below. In fact evidence to this effect on record has been completely ignored by the learned Courts below. Objections so filed to the demarcation report are also without any merit and the same are accordingly dismissed. 17. Now, when it has come on record that the respondent/plaintiff is not the owner of the land over which the disputed shop is constructed, both learned Courts below have definitely erred in decreeing the suit in favour of the plaintiff for possession of shop by ejectment of the defendants. Taking into consideration the fact that the plaintiff is not owner of the land over which the disputed shop stood constructed, he was not entitled for decree of possession as has been granted in his favour by learned trial Court and upheld by learned Appellate Court. Substantial question of law stand answered accordingly. 18. In view of the above discussion, this appeal succeeds and the judgment and decree passed by learned trial Court in Civil Suit No. 93/2000 and upheld by learned Appellate Court in Civil Appeal No. 98-P/04, whereby decree of possession was passed in favour of the respondent/plaintiff, is set aside and the suit filed by the plaintiff is ordered to be dismissed. However, taking into consideration the fact that the appellants are in possession of Government land, it is observed that this judgment shall not come in the way of the State of Himachal Pradesh from evicting the defendants from the said land in accordance with law. Miscellaneous application(s) pending, if any, stand disposed of. Interim order, if any, also stand vacated.