2025:HHC:41243 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.301/2024 Date of Decision: 02.12.2025 Devender Singh and others .....Appellants Versus Hardev Singh and another …..Respondent Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellants : None. For the Respondent : M/s Vinod Chauhan, Anchal Singh & Nandita, Advocates. Bipin Chander Negi, Judge (oral). This Regular Second Appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 03.10.2023 passed by the learned District Judge, Mandi, District Mandi, H.P., in Civil Appeal No. 28 of 2023, titled Devender Singh & Others vs. Hardev Singh & Others, whereby the learned District Judge upheld the judgment and decree dated 31.03.2023 passed by the learned Civil Judge, Court No. 3, Mandi, District Mandi, H.P., in Civil Suit No. 5 of 2018, titled Devender Singh & Others vs. Hardev Singh & Others. 2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned Trial Court. 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 3. Succinctly stated, the facts giving rise to the present second appeal are that the land comprised in Khewat no. 33, Khatauni no. 44, Khasra no. 1254/469, measuring 03-02-00 bighas situated in Muhal Mandal, Hadbast No. 202, Patwar Circle Bhangrotu, Tehsil Balh, District Mandi, H.P. (hereinafter referred to as ‘the suit land’) is recorded in the ownership and possession of late Sh. Gulab Singh. After his death, mutation of inheritance was attested in favour of the plaintiffs vide mutation no. 1244 dated 27.06.2016. 4. The defendant No.1 is the adjoining land owner and was alleged to be causing illegal interference over the suit land. The suit land was demarcated by Naib Tehsildar on 30.06.2012 in presence of the parties and respectable persons of the locality, wherein land measuring 00-01-12 bighas was found in the illegal possession of defendant No.1, over which he had constructed a house and a toilet. It was the plaintiffs case that the defendant No.1 at the time of demarcation admitted to give land in exchange to the plaintiffs in lieu of the land found under his illegal possession. The plaintiffs, being legal representatives, instituted the suit for vacant possession. An earlier suit filed by the predecessor-in-interest of the plaintiffs was dismissed. The cause of action accrued on 15.12.2017 when the defendants were requested to deliver vacant possession. The plaintiffs sought a decree for vacant possession of the encroached land and a decree for permanent prohibitory injunction. 3 5. The defendants contested the suit by filing a written statement raising preliminary objections regarding maintainability, cause of action, misjoinder and non-joinder of necessary parties, estoppel, and jurisdiction. On merits, they submitted that the earlier suit was already dismissed, denied that the demarcation found any encroachment, and claimed that the dispute was settled by an exchange of land and delivery of possession, and that the construction was raised on their own land. They pleaded that the suit was hit by the principle of res judicata. 6. Upon the pleadings of the parties, the learned Trial Court framed the following issues: 1. Whether the plaintiffs are entitled for the relief possession of the suit land measuring 00-01-12 bighas described as Khasra no. 1254/469/1, as prayed for? OPP 2. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 3. Whether the suit of the plaintiffs is not maintainable, as alleged? OPDs 4. Whether the suit of the plaintiffs is barred by principle of res judicata, as alleged? OPDs 5. Whether the suit of the plaintiffs is bad for non joinder and misjoinder of necessary parties, as alleged? OPDs 6. Whether the plaintiffs are estopped by their own acts and conduct to file the present suit, as alleged? OPDs 7. Whether the suit of the plaintiffs is not properly valued for the purpose of Court fee and jurisdiction, as alleged? OPDs 4 8. Whether the plaintiffs have no cause of action against the defendants to file the present suit, as alleged? OPDs 9. Relief. 7. Both parties led their evidence. Vide judgment and decree dated 31.03.2023, the learned Trial Court decided all issues Nos. 1 to 8 in the negative and dismissed the suit. 8. Aggrieved by the dismissal, the plaintiffs preferred the First Appeal. It was contended on behalf of the appellants that the judgment was against the law and facts on record, based on surmises and conjectures, and against natural justice. It was argued that the Trial Court mis appreciated evidence and misinterpreted the law, wrongly concluding that the encroachment was not proved. A grave error was committed in discarding the demarcation report dated 30.06.2012 (Ex. PW5/A), which was conducted in the presence of both parties, adjoining landowners, the Pradhan, and other locals. The defendant had never disputed the validity of this demarcation nor filed any appeal against the subsequent demarcation order dated 02.03.2013. The Trial Court committed illegality by ignoring proved facts, and an admitted fact could not be reopened after many years. It was, therefore, prayed that the appeal be allowed and the judgment of the Trial Court be set aside. 9. The First Appellate Court, however, upon consideration, dismissed the appeal. Being aggrieved by the judgment and decree 5 of the First Appellate Court, the appellant has now preferred the present Second Appeal. 10. Heard Counsels for the parties, perused the impugned judgements. 11. The plaintiffs, being the legal heirs of the late Sh. Gulab Singh, have successfully demonstrated their derivative title to the suit land comprised in Khasra No. 1254/469. This is substantiated by the relevant entries in the Jamabandi and the subsequent mutation of inheritance (Mutation No. 1244 dated 27.06.2016) which was duly attested in their favour. Defendant No. 1, as the owner of the adjoining lands, did not dispute the plaintiffs’ ownership per se but vigorously contests the allegation of encroachment. The entire edifice of the plaintiffs’ case for recovery of possession and for a decree of permanent prohibitory injunction is constructed upon the foundation of the demarcation proceedings conducted on 30.06.2012 and the resultant report (Ex. PW5/A) prepared by the then Naib Tehsildar, Sh. Roop Lal (PW-5). This report concluded that the defendant was in illegal possession of an area measuring 00-01-12 bighas of the suit land, upon which he had constructed a house and a toilet. 12. A critical and detailed examination of the evidence pertaining to this demarcation, however, reveals several material and procedural lapses that fundamentally undermine its reliability and legal validity. The Naib Tehsildar (PW-5), who conducted the 6 demarcation, testified that the proceedings were attended by officials, the local Pradhan, and the parties. Nevertheless, during his cross-examination, he conceded significant shortcomings. He admitted that the official record of the demarcation file did not contain copies of the summons or notices issued to the defendants, casting doubt on whether proper and mandatory service was effected. More critically, he revealed a serious chronological inconsistency, the mauka tatima (Ex. PW4/A), which is the essential site map prepared during demarcation, bears the date 12.11.2011, while the formal demarcation report (Ex. PW5/A) is dated 30.06.2012. This discrepancy is not minor; it strikes at the heart of the report’s authenticity, as the tatima and the report are required to be prepared as part of a single, contemporaneous process. This irregularity was corroborated by the Patwari, Sh. Jai Chand (PW-4), who prepared the tatima and who affirmed that both documents should be prepared on the same date. 13. Beyond this anomaly, the evidence fails to establish that the demarcation was carried out in strict conformity with the legally prescribed methodology. The settled legal principle, as consistently held by this court and upheld by the Supreme Court in Ram Lal vs. Salig Ram AIR 2019 Supreme Court 719, mandates that for a demarcation report to be legally sound, the demarcating officer must first locate and fix three permanent points on three different sides of the land sought to be demarcated. The statements 7 of the interested parties should be recorded to confirm their acceptance of these points as correct. The testimony of PW-5 is conspicuously silent on this crucial aspect. He stated that Khasra No. 466 was taken as a permanent point but could not elucidate the distance between this point and the suit land or demonstrate that two other distinct points were similarly fixed. This failure to adhere to the basic and mandatory procedural safeguards renders the demarcation report inherently defective and devoid of evidentiary value. The defendant (DW-1), in his testimony, admitted to being present at the demarcation but consistently denied that any land was found to be in his encroachment. He asserted that his constructions were situated on his own land and referred to a prior compromise and discussion regarding an exchange of land, which, according to him, was never concluded. The witness produced by the defendant, Sh. Brikam Singh (DW-2), also stated that a compromise had been discussed between the parties at the time of demarcation. 14. In light of the foregoing analysis, it is held that the plaintiffs have failed to discharge the burden of proof that was squarely upon them to establish the specific fact of encroachment by the defendant. The sole piece of evidence proffered to prove this fact, namely the demarcation report, is legally unsustainable due to the admitted procedural irregularities and non-compliance with mandatory norms. Consequently, in the absence of any other 8 credible evidence proving unauthorized possession or overt interference by the defendant, the plaintiffs are not entitled to the decree for possession of the specific area claimed or to the consequential relief of permanent injunction. The learned Trial Court, in its impugned judgment, correctly appreciated the fatal flaws in the plaintiffs’ evidence and rightly concluded that they had not proved their case. The First Appellate Court, upon a reappraisal of the record, affirmed this finding. No perversity, illegality, or material error in the appreciation of evidence has been demonstrated that would warrant interference in the present Second Appeal. 15. 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 02nd December, 2025 (tarun/T.B)