( 2025:HHC:34560 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 200 of 2016. Decided on : 13 th October, 2025. Shri Nar Dass (now deceased) through his legal representatives Mohan Lal and others. ...Appellants. Versus Bhartiya Sanchar Nigam Ltd. ....Respondent. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the Appellants: Mr. Raman Sethi, Advocate. For the Respondent: Mr. Navlesh Verma, Advocate. Satyen Vaidya, Judge (Oral). This Regular Second Appeal has been filed by the appellant-plaintiff against the judgment and decree dated 02.06.2015 passed by the learned Additional District Judge-II, Shimla in Civil Appeal No. 63-S/13 of 2014 whereby the judgment and decree dated 27.11.2013 passed by learned Civil Judge (Junior Division), Court No.5, Shimla in Civil Suit No. 29-1 of 2011 was affirmed. 2. The suit of the appellant/plaintiff has been dismissed by both the Courts. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:34560 ) 3. The facts in nutshell are that the appellant/plaintiff is owner in possession of land comprised in Khewat Khatauni No. 39/58, Khasra No.71, measuring 0-37-75 hectares situated at Mauja Balghar, Tehsil Theog, District Shimla, H.P. As alleged in the plaint, the respondent/defendant BSNL had erected a transmission tower purportedly on the adjoining land in Khasra No.70 by entering into a lease deed with the owner of the said land. Appellant-plaintiff had alleged that instead of raising transmission tower on Khasra No. 70, it was raised in the adjoining land of the plaintiff comprised in Khasra No. 71. Hence, he was entitled to the use and occupation charges. Plaintiff had also prayed for a decree of mandatory injunction to direct the respondent/defendant to remove the tower from the land comprised in Khasra No. 71. 4. The respondent/defendant had contested the suit by denying the allegations made in the plaint. It was alleged that the suit as framed was not maintainable and the averments made in the plaint were vague. On merits, it was submitted that the respondent/defendant had erected mobile transmission tower on Khasra No.70 in Village Balghar, Tehsil Theog, District Shimla, which it had taken under a lease agreement for 20 years from the owner of the said land. The 3 ( 2025:HHC:34560 ) report of demarcation on which plaintiff had placed reliance was also contested being incorrect. 5. As per the plaintiff/appellant, prior notice was issued by him to the defendant spelling out his claim. In written statement, defendant had though admitted the receipt of notice, but had brushed aside its importance by alleging that it was not a legal and valid notice. 6. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the defendant has installed mobile tower in the land of the plaintiff Khasra No.71, at Mauza Balghar, Tehsil Theog, District, Shimla, H.P.? OPP. 2. In case findings on issue No.1 is in affirmative, whether the plaintiff is entitled for decree of recovery of Rs.2,90,000/ as well as use and occupation charges @9% per annum, as claimed?OPP. 3. Whether the plaintiff is entitled for a decree of mandatory injunction directing defendant to remove the said tower from the suit land?OPP. 4 ( 2025:HHC:34560 ) 4. Whether the present suit is not maintainable? OPD. 5. Relief. 7. Issue No.1 was decided in affirmative, whereas all other issues were decided in negative and consequentially the suit of the plaintiff was dismissed. 8. In the first appeal filed by the plaintiff-appellant, again the learned First Appellate Court affirmed the findings recorded by the learned trial Court and dismissed the appeal vide impugned judgment and decree. Hence this appeal. 9. The appeal was admitted on 08.03.2017 on the following substantial question of law: - “1. Whether the non-suiting of plaintiff by the concurrent pronouncements recorded by both the Court below on anvil of his acquiescing to the location of a mobile tower by the defendant upon his land since 2008 upto 2011 is a well founded reason(s) preeminently when the suit of the plaintiff is filed within limitation?” 10. I have heard learned counsel for the parties and have also gone through the entire record carefully. 11. Noticeably, while answering issue No.1, learned trial Court has categorically held that the transmission tower of defendant stood erected in Khasra No. 71 i.e. the land 5 ( 2025:HHC:34560 ) belonging to the plaintiff/appellant. Learned trial Court had taken into consideration the report of Local Commissioner appointed by the Court, who had demarcated the land on spot. The report of Local Commissioner, Ex.PW2/A was taken into consideration, according to which transmission tower of defendant had been constructed in Khasra No.71 at a distance of 20 meters from khasra No.70. 12. The record reveals that the defendant had not opposed the appointment of Local Commissioner. After the submission of report by the Local Commissioner, the defendant had raised objections as to its authenticity and legality, which were dismissed by the learned trial Court on 19.06.2012. The order dated 19.06.2012 passed by the learned trial Court, whereby the objections of defendant to the report of Local Commissioner were dismissed, was not assailed further. 13. Thus, the reliance placed by the learned trial Court on such a piece of evidence cannot be faulted with. 14. Learned counsel for the defendant Mr. Navlesh Verma, Advocate, has vehemently argued that even if the report of Local Commissioner was there but it was of no help to the plaintiff as the Local Commissioner had violated the specific instructions laid down by the Financial Commissioner, 6 ( 2025:HHC:34560 ) Himachal Pradesh for conducting of demarcation under Section 107 of the H.P. Land Revenue Act. In order to support his contention, Mr. Navlesh Verma, Advocate, has pointed out that the owner of Khasra No.70 was not associated at the time of demarcation. The argument so raised by Mr. Verma needs to be rejected for the reason, firstly, that the plaintiff in the first instance had not raised any boundary dispute with the owner of Khasra No.70, he was simply concerned with the construction of tower and its location. He had not raised any claim against the adjoining owner of Khasra No.70. Secondly, when the objections raised by the defendant to the report of Local Commissioner had already been dismissed by the learned trial Court and the order dismissing the objections has attained finality, the defendant in Regular Second Appeal cannot raise the question again. Even otherwise, this Court does not find anything on record to suggest that the location of transmission tower identified by the Local Commissioner was wrong, more particularly when it was shown to be 20 meters away from the boundary of Khasra No.70. 15. The finding of fact so recorded by the learned trial Court on issue No.1 has not been upset and set aside by the learned First Appellate Court. Both the Courts, however, have 7 ( 2025:HHC:34560 ) dismissed the suit of the plaintiff on the ground that the plaintiff himself had not stepped into the witness box and also that the plaintiff had not raised objection at the time of erection of tower. 16. Looking at the prayers made by the plaintiff in the plaint, it is found that he had sought use and occupation charges for unauthorized use of his land by the defendant. He had also prayed for a decree of mandatory injunction seeking direction against the defendant to remove the transmission tower. Once, it was proved that the tower had been erected on the land of the plaintiff that too without his permission, the claims made by the plaintiff were not unjustified. Plaintiff, before filing the suit, had issued notice, Ex.PW1/B, showing his intent, but the same was ignored by the defendant. The defendant, instead of attending to the objections raised by the plaintiff, went on contesting the suit that too without having any concrete evidence with it to prove that the tower had not been erected on the land of the plaintiff. 17. Mr. Navlesh Verma, learned counsel for the defendant-BSNL has further argued that the suit was not maintainable in the absence of owner of Khasra No.70. This objection also deserves rejection. As noticed above, plaintiff 8 ( 2025:HHC:34560 ) had no dispute whatsoever with the owner of Khasra No.70. Neither the plaintiff had alleged anything against the owner of Khasra No.70 nor had directly or indirectly claimed any relief against him. Obviously, the plaintiff would have no grievance with respect to payment, if any, being made by defendant to the owner of Khasra No.70. Plaintiff’s concern was only about his own rights. Moreover, from the perusal of the written statement, It cannot be found that the defendant had taken any objection as to the misjoinder or non-joinder of parties. Keeping in view, the cause of action pleaded by the plaintiff in the plaint, the owner of Khasra No.70 was not even a proper party what to talk of being a necessary party. 18. As regards reasons assigned by both the Courts for dismissal of suit, it can be seen that adverse inference has been drawn for non examination of plaintiff as one of his witness. The son of the plaintiff had appeared as a witness and had produced Special Power of Attorney in this behalf as Ex.PW1/A. The demarcation, as noticed above, conducted by the Local Commissioner had already been accepted by the learned trial Court as evidence by rejecting the objections raised by the defendant. The Demarcating Officer i.e. the Local Commissioner was examined as one of the witness of the plaintiff i.e. PW-2, which further proved the contents of 9 ( 2025:HHC:34560 ) the report. That being so, it cannot be said that the Special Power of Attorney of plaintiff had omitted or refused to answer any material question which had affect on the merits of the case. Even observation of the learned trial Court that the son of plaintiff had failed to produce the original of Special Power of Attorney appears to be against record. It is evidence from the examination of PW-1 that he had produced the original of the document and a specific observation had been made by the learned trial Court to that effect by recording “original seen and returned”. 19. Further, the other reason for dismissal of the suit i.e. the conduct of the plaintiff in not raising the objection at the time of erection of tower, again cannot be countenanced. The tower had been erected after the execution of lease deed on 28.04.2009. The exact date or period of erection of tower is not on record. The plaint was instituted by the plaintiff on 27.04.2011 and before that the plaintiff had issued notice Ex.PW1/B to the defendant on 01.12.2010. It was also not the case of the defendant that the tower had been erected in the presence of plaintiff nor was the plaintiff confronted, at any stage of the suit, with such fact. Thus, to say that the plaintiff was estopped from filing the suit will not be the right proposition. The plaintiff had filed the suit within the period 10 ( 2025:HHC:34560 ) of limitation and for such reason the dismissal of the suit on the aforesaid ground cannot be sustained. 20. In the aforesaid fact situation, this Court finds it is to be a fit case to interfere as the judgments passed by both the Courts are perverse. The Courts below could not have non suited the plaintiff on non existent grounds. Even an issue on non joinder or mis joinder of parties had not been framed for obvious reason that the defendant has not raised any such objection. 21. There is no absolute rule that in the absence of examination of plaintiff as a witness, the suit has to fall on ground, in all cases. In the present case, the son, as Special Power attorney of the plaintiff had appeared and as has been observed earlier, there was not even a single question put to PW-1 in cross-examination which he could not answer or was of such material nature that could have gone to the root of the case. 22. The case of the plaintiff also did not find favour with the learned trial Court on the ground that he had not lead any evidence to prove the quantification of use and occupation charges claimed by him. This again could not have been a ground to reject the claim of the plaintiff for the reason that the quantification was already available on 11 ( 2025:HHC:34560 ) record. Defendant had agreed to pay Rs.1800/- per month to the owner of Khasra No. 70 vide lease deed Ex.DW1/A and the said amount could have been adjudged as use and occupation charges in favour of plaintiff. 23. In result, the substantial question of law is decided in favour of the appellant/plaintiff. 24. Accordingly, the appeal is allowed and the impugned judgments and decrees are set aside. The suit of the plaintiff is decreed for use and occupation charges @ Rs.1800/- per month from the date of issuance of notice, i.e. 01.12.2010 along with interest @6% per annum. It is further decreed that in case the defendant does not want to continue with transmission tower on Khasra No.71, it shall be at liberty to remove the same and re-erect at the place of its choice. The use and occupation charges, however, shall be payable till the tower is not removed from the land of plaintiff. 25. No order as to the costs. 26. Decree sheet be prepared accordingly. 27. Records be sent back. (Satyen Vaidya) Judge 13th October, 2025. (jai)