IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.40 of 2025 Decided on: 21.05.2025 Saneh Lata & another ….Petitioners Versus Kamal Kumar & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the petitioners: Ms. Reeta Hingmang & Ms. Mridul Nag, Advocates. For the respondents: Nemo. Satyen Vaidya, Judge (Oral) The petitioners have assailed order dated 05.04.2025, passed by learned Senior Civil Judge, Court No.1, Kangra in CMP No.380 of 2025. 2. The petitioners herein are the defendants in the suit filed by the respondents. They have also filed a counter claim. Both the suit and counter claim are pending adjudication before the learned trial Court. 3. The defendants/counter claimants filed an application under Order 6 Rule 17 of the Code of Civil Procedure with a prayer to amend the counter claim. It was averred in the application that during the pendency of suit, demarcation of the land had taken place twice with respect to Khasra No.585/172 2 and the encroachment has been found over the land denoted by Khasra No.585/172/1, measuring 00-01-18 Hects. It was further averred that the evidence with respect to the aforesaid two demarcations had already been led by the counter claimants, but since there were no averments in the counter claim with respect to the conduct of aforesaid demarcations, the counter claim was sought to be amended by incorporating the details of the demarcations said to have been conducted twice during the pendency of the suit. 4. The application was resisted. 5. Learned trial Court vide impugned order has rejected the application by holding that the demarcations with respect to which the counter claimants intended to amend the counter claim had already been set aside by the competent authority and for such reason no relief could be allowed in favour of counter claimants on the basis of demarcations which had been set aside. 6. Having heard learned counsel for the petitioners, though the reasonings on which the application of the counter claimants has been rejected by learned trial Court cannot be countenanced, yet for the reasons stated hereafter, the result will not change. 3 7. What is sought to be incorporated by way of amendment, in considered view of this Court, is not at all necessary for adjudication of the matter inter se the parties. The counter claimants have filed the counter claim seeking relief of possession against the plaintiffs. Their allegation is that the plaintiffs have made encroachment upon the land belonging to counter claimants. Thus, the counter claimants are to prove their allegations by way of evidence and the demarcation reports, as referred to in the application for amendment, can be piece of evidence, which need not be specifically pleaded. Noticeably, evidence has already been led by the counter claimants to prove the factum of demarcation having been conducted on spot. 8. As regards the findings returned by learned trial Court that the counter claimants were not entitled for relief on the basis of demarcations which were already set aside, clearly is prejudging an issue and for such reason the findings to that effect cannot be sustained and are accordingly set aside. 9. In view of observations made hereinabove, the petition is rejected. However, it is made clear that the learned trial Court while deciding the issues inter se the parties, shall not be prejudiced by any of the findings returned by it in the impugned order. 4 Petition is accordingly disposed of along with pending application(s), if any. ( Satyen Vaidya ) Judge May 21, 2025 (vt)