2024:HHC:7402 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.213/2022 Date of Decision: 09th July, 2025. Vijay Kumar .....Appellant Versus Anil Kumar and Others. …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Surender K. Sharma, Advocate. For the Respondents: Mr. Vinod K. Thakur, Advocate, for respondents No.1 to 4. Respondents No.5 to 7 proceeded against ex parte. Bipin Chander Negi, Judge (oral). The Appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgement and decree dated 25.05.2022 passed by Learned Additional District Judge, Hamirpur, in Civil Appeal No. 34/2019 affirming the Judgement and Decree dated 05.04.2019 passed by the Learned Senior Civil Judge, Court No. 1, Hamirpur, H.P. in Civil Suit No. 4/2011, RBT No. 200/2015, 131/2016. 2. The parties shall hereinafter be referred to in the same manner as they were arrayed before the Trial Court. The facts of the case, briefly stated, are that the suit land bearing Khata No. 222 min, Khatoni No. 242 min, Khasra No. 1418, measuring 16 Marlas, situated in Tika Bagwara, Tappa Bamson, Tehsil Bhoranj, District Hamirpur, H.P., as per the jamabandi for the year 2004-2005, is recorded in the ownership and possession of 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 2024:HHC:7402 the plaintiffs. It is averred that the defendant commenced construction on his land bearing Khasra No. 1421 in August 2005 and, in the process, attempted to encroach upon the suit land, prompting objections from the plaintiffs. Subsequently, the parties entered into an agreement dated 03.08.2005, wherein the defendant agreed that if his construction was found to be on the plaintiffs' land, he would either provide equal land at the same location or double the land elsewhere. The plaintiffs later obtained a demarcation on 23.02.2010 through the Field Kanungo, which allegedly revealed an encroachment of 2 Marlas in Khasra No. 1418/1 by the defendant. Despite requests to comply with the agreement, the defendant refused, leading the plaintiffs to file a suit for possession in January 2011. 3. The defendant contested the suit, raising preliminary objections regarding locus standi, estoppel, and other grounds. On merits, he admitted constructing on his own land (Khasra Nos. 1419 and 2115/1421) and acknowledged the agreement dated 03.08.2005 (Ex.D1). However, he challenged the validity of the demarcation, contending it was not conducted as per the Financial Commissioner's instructions, and argued that the plaintiffs could not seek possession in light of the agreement. On the basis of the pleadings of the parties, the trial Court framed the following issues on 28.03.2012: 1. Whether defendant has encroached upon a portion of the suit land to the extent of 2 marlas, as alleged ?OPP. 3 2024:HHC:7402 2. If issue No.1 above is answered in the affirmative, whether plaintiffs are entitled to possession ?OPP. 3. Whether suit of plaintiffs is not maintainable in view of agreement dated 03.08.2005 ?OPD. 4. Whether there lies no cause of action and locus-standi in favour of plaintiffs to file the present suit? OPD. 5. Whether plaintiffs are estopped from filing the present suit by their own act and conduct ?OPD. 6. Whether defendant is entitled to special costs under Section 35-A CPC ?OPD. 7. Relief.. 4. The plaintiffs examined four witnesses, submitting the demarcation report (Ex.PW2/A) and jamabandi (Ex.P1). The defendant examined six witnesses, producing the agreement (Ex.D1), demarcation report (Ex.DW2/A), and other documents. During proceedings, the trial court appointed a Local Commissioner, whose report (Ex.OW1/A) confirmed the encroachment. The trial court partly decreed the suit, ruling in favour of the plaintiffs on Issues No. 1 and 2 and against the defendant on Issues No. 3 to 6. 5. Dissatisfied, the defendant filed the first appeal, arguing that the trial court ignored the Financial Commissioner's instructions regarding minor discrepancies (less than 5 Sarsai) and failed to consider earlier demarcation reports (Ex.PW2/A and Ex.DW2/A). He reiterated his willingness to comply with Ex.D1 and claimed that plaintiff No. 1 was in actual possession. The first appellate court dismissed the appeal, prompting the defendant to prefer the present second appeal. 6. Heard counsel for the parties and perused the impugned judgments. 4 2024:HHC:7402 7. The learned counsel for the appellant contended that no encroachment was made by the defendant and the suit for possession was barred by the agreement dated 03.08.2005 (Ex.D1). On the other hand, the respondents argued that the demarcation report dated 23.02.2010 confirmed the encroachment of 2 Marlas in Khasra No. 1418/1, justifying the decree in their favour. 8. The record reveals four demarcation reports. The first (Ex.DW2/A, dated 19.02.2004) pertains to Khasra Nos. 1420 and 1421, not the suit land (Khasra No. 1418), and was conducted without the plaintiffs' participation, rendering it unreliable. The second (Ex.DW5/A, dated 23.12.2007) relates to Khasra Nos. 1419 and 1427 and similarly does not bind the plaintiffs, as they were not parties to it. The third (Ex.PW2/A, dated 23.02.2010), relied upon by the plaintiffs, allegedly showed encroachment by the defendant. However, PW2, the Kanungo who conducted the demarcation, admitted in cross- examination that permanent points were not properly recorded, adjoining Khasra numbers were not measured, and Financial Commissioner’s instructions were not followed. Thus, this report also lacks credibility. 9. The fourth demarcation (Ex.DW1/A, dated 10.12.2014), conducted by the Local Commissioner, found the defendant had encroached upon 1 Marla of the suit land (Khasra No. 418/1). 5 2024:HHC:7402 The appellant admitted this report, and though the plaintiffs initially objected, the trial court accepted it as correct. 10. Regarding the agreement (Ex.D1), while its execution by plaintiff No. 1 and the defendant is admitted, the suit land is jointly owned by all plaintiffs, as per jamabandi Ex.P1. Plaintiff No. 1, being merely a co-sharer, had no authority to bind the other plaintiffs through this agreement, especially since no partition or specific authorization was established. Thus, Ex.D1 cannot preclude the remaining plaintiffs from seeking possession. 11. Since the plaintiffs are co-owners in possession and the defendant’s status is that of a trespasser per Ex.OW1/A (demarcation report of demarcation conducted by learned trial Court, on application under Order 26 Rule 9 CPC, filed by the defendant), the trial court rightly decreed the suit for possession. The findings are based on proper appreciation of evidence, and no infirmity warrants interference. Accordingly, the second appeal fails, and the judgments of the trial court as well as the First Appellate Court are upheld 12. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 09th July, 2025 (T.B/Gaurav Rawat)