IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.241/2023 Date of Decision: 05th December, 2025. Ravinder Nath (Deceased) through LRs .....Appellants Versus Dasaundhi Ram (Deceased) through LRs and anr. …..Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellants: Mr. Ajay Sharma, Sr. Advocate, with Mr. Tarun Brakta, Advocate. For the Respondents: None for respondents No.1(i), 1(iii) and 1(v) and 2. Name of respondents No.1(ii), 1(iv) and 1(vi) stands deleted vide order dated 11.03.2025. 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 judgment and decree dated 19.11.2022, passed by the learned Additional District Judge-I, Una, District Una, HP in Civil Appeal No.51 of 2016, affirming the judgment and decree dated 04.03.2016, passed by the learned Civil Judge, Court No.1, Amb, District Una, HP, in Civil Suit No.160 of 2005. 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. The appellant (hereinafter referred to as the plaintiff) had filed a suit for vacant possession against the respondents (hereinafter referred to as the defendants) in the learned trial court. It was 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 alleged that the land measuring 0-04-10 hectares comprised in Khewat No. 54 min, Khatoni No. 177 min, Khasra Nos. 604 and 600, situated in village Rajpur Jaswan, Tehsil Amb, District Una, H.P., was owned and possessed by the plaintiff and other co- sharers, who had authorized the plaintiff to pursue the case. The plaintiff and his co-sharers resided far away from the village. The defendants, having no right over the suit land, allegedly took advantage of the plaintiff's absence and, in April 2005, encroached upon a portion marked ABCDE and raised illegal construction without their consent. 3. The plaintiff discovered this construction in July 2005 and, upon enquiry, learned in September 2005 that the defendants were responsible. Despite requests, the defendants refused to hand over vacant possession, leading to filing the suit. The defendants contested the suit, raising preliminary objections regarding maintainability, cause of action, non- joinder of necessary parties, and estoppel. On merits, they asserted that the plaintiff and co-sharers were worshippers of a temple visited regularly, and that some respectable villagers had constructed a temple of Sh. Banshi Dhar and a kitchen in the month of March 2003, on the adjoining Khasra Nos. 602 and 603, not on the suit land. The plaintiff filed a replication reaffirming the plaint's assertions. 4. On the pleadings of the parties, the following issues were framed by the learned trial court on 31.07.2008:- 3 1. Whether the plaintiff entitled to vacant possession of suit property marked ABCDE in the site plan as prayed ?OPP. 2. Whether suit of plaintiff is not maintainable?OPD? 3. Whether the suit is bad for non joinder of necessary parties, as alleged ? OPD. 4. Whether plaintiff has no cause of action?OPD. 5. Whether plaintiff estopped by act and conduct to file suit ?OPD. 6. Relief. 5. After evidence and hearing, the trial court decided Issue No. 1 against the plaintiff and Issues No. 2 & 4 in favour of the defendants, dismissing the suit. Aggrieved, the plaintiff preferred the first appeal, contending that the trial court failed to appreciate the documentary and oral evidence, and that its judgment was based on conjecture and surmises. The first appellate court, however, dismissed the appeal. Therefore, the plaintiff has preferred the present second appeal. 6. Heard counsel for the appellant, perused the impugned judgements. 7. The plaintiff's suit for vacant possession of the portion marked ABCDE is predicated on proving encroachment by the defendants upon the specific land comprised in Khasra Nos. 604 and 600. The plaintiff relied primarily on the jamabandi, a site plan prepared by a draftsman, and a demarcation report obtained by his brother. The documentary evidence, particularly Ext. P1 (jamabandi), establishes the ownership and possession of the plaintiff and other co-sharers over the suit land. 4 8. However, the crucial link between this ownership and the alleged encroachment by these specific defendants remains unproven. The site plan, Ext. PW2/A, prepared without revenue assistance or the presence of the opposite party, is not a document of title and by itself cannot conclusively prove that the construction shown therein falls within the plaintiff's specific khasra numbers. The demarcation report, Ext. P2, suffers from fatal procedural infirmities as it was conducted in the absence of the defendants, and the official who prepared it was not examined. Furthermore, the report was initiated against different persons and does not culminate in a formal tatima or order affirmed by the competent revenue authority. The plaintiff's own admission regarding the existence of a temple on adjoining land and his regular visits for worship introduces an element of ambiguity concerning his knowledge and acquiescence, which the defendants have emphasized. 9. On the other hand, the defendants have consistently maintained that the construction in question, a temple and sarai, was raised by villagers on the adjoining Khasra Nos. 602 and 603 with the knowledge and implied consent of the owners, including the plaintiff. The plaintiff failed to effectively rebut this assertion or to establish that the defendants, Dasaundhi Ram and Om Parkash, were personally responsible for any construction on the plaintiff's land. 5 10. The denial of the plaintiff's application under Order XXVI Rule 9 CPC at a belated stage does not constitute an error, as the burden to prove his case through admissible evidence rested squarely on the plaintiff from the outset. The object of Order 26 Rule 9 CPC is not to assist a party to collect evidence where it can get the evidence itself. The object is to elucidate any matter in dispute by local investigation at the Spot. Where the Court is satisfied on materials available on record that a party is not able to produce the desired evidence for reasonable circumstances in such a situation, the Court may assist the party to appoint a commissioner to get the evidence. 11. Consequently, the plaintiff has failed to discharge the burden of proving that the portion ABCDE is, in fact, part of Khasra Nos. 604 and 600 or that these defendants have encroached upon it. The findings of the learned Trial Court, as affirmed by the First Appellate Court, that the plaintiff is not entitled to the decree for vacant possession, are based on a correct appreciation of the evidence and are upheld. The preliminary objections regarding the maintainability of the suit and cause of action were decided in favour of the defendants by the trial court, and no cogent reason has been advanced to overturn those conclusions. 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 6 appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 05th December, 2025 (Gaurav Rawat/TB)