2026:HHC:14206 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 382 of 2008 Reserved on: 17.03.2026 Date of Decision: 30.04.2026 Tripta Devi & another ...Appellants Versus Madan Lal & another ...Respondents _____________________________________ Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr Sanjeev Kuthiala, Senior Advocate with Tamana Sharma, Advocate. For the respondents : Mr Diwan Singh Negi, Advocate, for respondents No.1 & 3. Name of respondent No. 2 stands deleted vide order dated 07.12.2017 ______________________________________ Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 02.05.2008, passed by the learned Additional 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:14206 District Judge, Fast Track Court, Una, District Una, H.P. (learned Appellate Court) vide which the judgment and decree dated 30.11.2000, passed by the learned Sub Judge, First Class, Court No.II, Amb, District Una H.P.(learned Trial Court) were set aside. (For the sake of convenience, the parties shall be referred to in the same manner as they were arrayed before the learned Trial court. 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for restraining the defendants from raising any construction, blocking the sewerage outlet/water pipe, encroaching upon and taking forcible possession of the area marked ABCD shown red in the site plan, being the northern portion of Khasra Nos. 2264, measuring 0-10 Marlas, bearing Khewat No. 318, Khatauni No. 456 as entered in Jamabandi for the year 1981-82 (hereinafter referred to as the suit land). An alternative relief for possession by way of removal of encroachment and demolition of the construction, if any, was also sought. It was pleaded that the suit land is owned and possessed by the plaintiff. The plaintiff has raised a construction shown in green and marked ‘M' in the site plan. He left some portion of the suit land vacant towards the North for repairs and 3 2026:HHC:14206 whitewashing of his house. He has kept sewerage pipes and water outlets towards the vacant portion, and the vacant portion as required for the repair of the house, and removing the pipes in case of blockage. Defendants Nos. 1 and 2 are the owners of the adjacent land. The defendants threatened to raise a forcible construction over the area marked ABCD, shown red in the site plan, close the water outlet pipes and cover the sewerage pipes. The plaintiff requested the defendants not to do so, but in vain. Hence, the suit was filed to seek the relief mentioned above. 3 The suit was opposed by the defendants by filing a written statement, taking preliminary objections regarding the lack of maintainability and cause of action, the plaintiff, having not approached the Court with clean hands, and the plaintiff being estopped by his act, conduct, acquiescence and laches to file the present suit. It was admitted that defendants No.1 and 2 are the owners of the adjacent land and defendant No.3 is the son of defendants No.1 and 2. The rest of the contents of the plaint were denied on the merits. It was asserted that the plaintiff covered the entire area owned by him by constructing his Abadi. Defendant No.1 is serving in the Navy, and defendant No. 2 is residing at the Gagret. Defendant No.1 laid the foundation over 4 2026:HHC:14206 his land bearing Khasra number 2265, adjoining the suit land by spending more than ₹55,000/-. The plaintiff approached defendant No.1 and requested him to provide 2 feet wide space for the repair of his pipe. Defendant No.1 told the plaintiff that he had less land for his Abadi and would not be able to provide any land to the plaintiff. The defendant had completed the construction much before filing of the suit. Hence, it was prayed that the suit be dismissed. 4. No replication was filed. 5. The Ld. trial Court framed the following issues on 22.11.1993: - 1. Whether the plaintiff is entitled to the relief of permanent injunction? OPP. 2. Whether ABCD is part of Khasra No.2264, if so its effect? OPP 3. Whether plaintiff is estopped by his act and conduct? OPD. 4. Whether the suit is not maintainable? OPD. 5. Relief. 6. The parties were called upon to produce the evidence, and the plaintiff examined himself (PW-1), Sanjeev Kumar (PW- 2), and Gurbachan Dass (PW-3). The defendant no. 1 examined himself (DW-1) and S.S. Chauhan (DW-3) (sic). 5 2026:HHC:14206 7. A Local Commissioner was also appointed by the learned Trial Court. The objections were filed to the report of the Local Commissioner, and the statements of Madan Lal (OW-1) and Ram Rattan (OW-2) were recorded. 8. Learned Trial Court rejected the objections made to the report of the local commissioner and accepted the report. Learned Trial Court held that the demarcation conducted by S.S Chauhan (DW-3) was not acceptable. It was proved by the statement of the Local Commissioner that portion ABCD formed part of the suit land, and the defendants had no right to interfere with it. They had encroached upon the part of the suit land. Hence, the learned trial Court decreed the suit of the plaintiff for possession of the portion encroached by the defendants mentioned in the report of the Local Commissioner. 9. Being aggrieved by the judgment and decree passed by the learned trial Court, the defendants filed an appeal, which was decided by the learned Additional District Judge, Fast Track Court District Una, H.P. (learned Appellate Court). The learned Appellate Court held that the Local Commissioner admitted that he had not measured the area under the plaintiff’s house. He had 6 2026:HHC:14206 not consulted the Musabi, the record of the Consolidation or the Field map before conducting the demarcation. Therefore, the learned Trial Court erred in accepting the report of the local Commissioner. S.S. Chauhan (DW-3) was a Revenue Officer, and there was nothing to show that he had not followed the procedure as per the law. The plaintiff had purchased 10 marlas of the land, but he was shown in possession of more than 10 marlas of land in the copy of Khatauni (Ext.P-2). This falsified the plaintiff’s version that the defendants had encroached upon the suit land. There was no evidence of the encroachment made by the defendants over the suit land. Hence, the judgment and decree passed by the learned trial Court were set aside. 10. Being aggrieved by the judgment and decree passed by the learned Appellate Court, the legal heirs of the plaintiff have filed the present appeal, which was admitted on the following substantial questions of law on 11.08.2008: 1. Whether the learned Courts below have misread and misappreciated the pleadings as also the evidence, both oral and documentary, especially the statements of PWs 1 to 3, DW1, Ext.P1, Ext.PW-1/A, Ext.DW-3/A, Ext.DX and Ext. LC-1 and on account of such misreading and misappreciation of evidence, the findings as such are vitiated? 7 2026:HHC:14206 2. Whether previous demarcation report not relied upon by the first appellate court, which was relied upon by the trial Court and based on corroboration suit was decreed, it was incumbent upon the learned first appellate Court to have appointed a court commission suo motu for the purpose of correct demarcation and whether such failure has resulted in the judgment being vitiated, in view of the judgment of this Hon’ble Court in case of Beli Ram vs. Mela Ram 2003(1) SLJ 2004? 11. I have heard Mr Sanjeev Kuthiala, learned Senior Advocate, assisted by Ms Tamanna Sharma, learned counsel, for the appellants and Diwan Singh Negi, Advocate, for respondents No. 1 & 3. 12. Mr Sanjeev Kuthiala, learned Senior Advocate for the appellants, submitted that the learned Trial Court had relied upon the report of the Local Commissioner and discarded the report of S.S. Chauhan. The Learned Appellate Court rejected the report of the Local Commissioner and accepted the report of S.S. Chauhan. It was incumbent upon the learned Appellate Court to appoint a fresh Local Commissioner after rejecting the report of the local commissioner, and the suit could not have been dismissed after rejecting the report of the Local Commissioner. He relied upon the following judgments in support of his submissions:  Gopal Krishan vs. Jagtamba Prasad & others 2002(1) Shim. L.C.132; 8 2026:HHC:14206  Bali Ram vs. Mela Ram & another 2003(1) SLJ 204; and  Kangru Ram vs. Sriram 2018(2) Shim. LC 1170. 13. Mr Diwan Singh Negi, learned counsel for respondents No. 1 & 3, submitted that the learned Trial Court had erred in accepting the report of the Local Commissioner. Learned Appellate Court had rightly pointed out that the plaintiff was in possession of more land than purchased by him, and the defendants could not have encroached upon the suit land. The learned Appellate Court had relied upon the report of S.S Chauhan, a Revenue official, who had conducted the demarcation as per the law. There was no necessity to appoint another Local Commissioner when the report of a competent Revenue Officer was available on record. There is no infirmity in the judgment and decree passed by the learned Appellate Court, and this Court should not interfere with the pure finding of facts recorded by the learned Appellate Court. Hence, he prayed that the present appeal be dismissed. 14. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial question of law No.1. 9 2026:HHC:14206 15. The plaintiff had filed the civil suit regarding Khasra No. 2264 measuring 10 marlas. As per the Conversion table for converting local measures into Hectares given in HP Land Records Manual Revised Edition, Part-C applicable to District Una, Kangra and Hamirpur at page 785, 1 marla is equivalent to 19.19754225 Sq. meters. Thus, 10 marlas would be equal to 191.9754225 Sq. meters. The copy of Khatauni Badobast Jadid (Ext.P-2) shows that the plaintiff, Ved Parkash, to be in possession of 214-27 Sq. meters, which is much more than 19.19754225 Sq. meters. Therefore, the learned Appellate Court was justified in holding that the plaintiff was in possession of more than 10 Marlas of land, and his version that the defendants had encroached upon his land measuring 10 Marlas was not acceptable. 16. Ram Rattan (OW2) stated that the dimensions of the government maind were not found to be correct on the spot. He admitted that he had not mentioned the dimensions of the field book of consolidation. He admitted that he had looked into the aks and field book of the year 1912-13. The report of demarcation (Ex. LC-1) reads that the demarcation was conducted with the help of the record prepared during the consolidation of 1978-79. 10 2026:HHC:14206 The report also mentions the dimensions in karams, whereas the area in Khatauni Bandobast (Ex. P3) has been mentioned in square meters. The copy of Khatauni Bandobast Jadid (Ex. P3) shows that the settlement was carried out in the year 1991-92. Thus, the demarcation was not conducted as per the record prepared during the current settlement. 17. The process of demarcation has been provided in Chapter 1-M of the High Courts Rules and Orders, which reads as follows: "I. If a boundary is in dispute, the Field Kanungo should relay it from the village map prepared at the last settlement. If there is a map which has been made on the square system, he should reconstruct the square in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points from line of a square and then with a chain and cross staff mark put the position and distance of those points. Thus, he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and, if possible, not more than 200 Kadams apart, which are shown in the map and which the parties admit to have been disturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared agree in all 11 2026:HHC:14206 cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields, as shown in the field map, can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map. II. In the report to be submitted by him, the Kanungo must explain in detail how he made his measurement. He should submit a copy of the relevant portion of the current settlement field map of the village showing the fields, if any, with their dimensions (Karu Kan) of which he took measurements, situated between the points mentioned in Instruction I above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings. III. If a question is raised as to the position of the disputed boundary according to the field map of the settlement proceedings of the current settlement, that also should be demarcated on the ground so far as this may be possible and also shown in the copy of the current field map to be submitted under Instruction No. II. IV. On the same copy should be shown also the limits of existing possession. V. The areas of the fields abutting on the boundary in dispute, as recorded at the time of that settlement, and those arrived at as a result of the measurement on the spot, should be mentioned in the Field Kanungo's report with an explanation of the cause of increase or decrease, if any, discovered. VI. When taking his measurement, the field Kanungo 12 2026:HHC:14206 should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements, they have no objection to make to this (or if they have any objection, he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurement and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent. VII. The above instructions should be followed by Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court Commissioners in suits involving disputed boundaries." (Emphasis supplied) 18. Thus, the demarcation is required to be conducted with the help of the record prepared during the last settlement as per the instruction no. 1. It was held by this Court in Kamal Dev vs Hans Raj AIR 2000 HP 130, that the instruction no. 1 issued by the High Court is mandatory. It was observed: “17. The instruction No. I supra prescribe the manner of actual demarcation of the land. There does not appear to be any other alternative recognised method of demarcation of land to ensure its correctness; therefore, prescribing the only approved method of demarcation of land, this instruction is required to be essentially complied with, failing which the demarcation will be vitiated.” 13 2026:HHC:14206 19. It was laid down by this Court in the State of H.P. v. Laxmi Nand, 1992 SCC OnLine HP 41: 1992(2) Sim. L.C. 307, that the demarcation has to be carried out with the help of the record prepared during the last settlement. It was observed: - “17. It is the admitted case of the parties that, in so far as the three revenue estates are concerned, the maps prepared during the last settlement were not on the square system. Accordingly, the determining officer was required to relay the boundaries of the fields sought to be demarcated from the Shajra (village map), prepared at the last settlement. He was required to locate three permanent points on three different sides of the area sought to be demarcated. The three points so selected and to be taken as a basis must be those which are admitted to have remained undisputed from the last settlement. The officer is thereafter required to chain these three points on the spot and then compare the result with the distance given as per the scale on the Shajra. It is only when the distances so compared agree that the Revenue Officer can proceed with further work of measurement. A pencil line is supposed to be drawn joining these three permanent points and thereafter perpendiculars are supposed to be drawn from these lines to each of the points, which are required to be located on the spot, to enable him to find out the exact distance from these points to the point sought to be demarcated, and then tally the result with the help of the scale on the Shajra, which can be drawn only with the help of the scale on the Shajra, which can be drawn only with the help of a crossed staff. The result is to be finally checked by measuring with the help of a scale on the Shajra. Since this report of demarcation is liable to scrutiny, by way of evidence, it is required that the report of the concerned officer on the face of it must explain the details and the manner as to how he made his measurements, which report must accompany a copy of the relevant portion of the Field Book of current settlement of the village showing KaruKans (dimensions) of the fields of which he took measurements as also a map showing therein the three 14 2026:HHC:14206 permanent points, the fields measured and the boundary in dispute. As per the instructions, this is one of the necessary requirements to enable the Court to follow the method adopted and also in order to find out the veracity of the proceedings. The other requirement, while submitting the report, is to record the statements of interested parties before taking the three permanent points to the effect that all of them agreed and accepted the three points as permanent points on three different sides of the property. In case any objection is raised as to the manner in carrying out the demarcation, the said objection is required to be reduced into writing, so as to avoid the possibility of raising any question specifically and also to enable the Court to decide such objections. In case an objection is raised on the spot, the demarcating officer is also required to submit his opinion on such objections. In case, while carrying out the demarcation, any discrepancy is noticed in the area of the fields abutting on the boundary in dispute as recorded in the last settlement and the one arrived at as a result of the actual measurement on the spot, the report is required to incorporate the same with an explanation as to the cause of increase or decrease, if any, discovered on the spot. All these requirements, in our opinion, have been incorporated in the instructions with the ultimate object of ascertaining that while carrying out the demarcation, the correct method was adopted and no mistake was committed.” (Emphasis supplied) 20. It was laid down by this Court in Rajinder Kumar vs. Hira Lal, 2016(3) Shim. L.C. 1263 that a demarcating official is required to conduct the demarcation with the help of the latest revenue record, and it is not permissible for him to refer to the record of the earlier settlement. It was observed: - 22…But interestingly, as has been noticed above by this Court while perusing Ex. PW l/A and the demarcation report given by the Local Commissioner, the Local Commissioner, instead of carrying out the demarcation of the suit land comprised in 15 2026:HHC:14206 khasra No.1096, as per missal Hakiat for the year 1996-97, referred to the old record for the year l891-92 and 1910-11, as insisted by the plaintiff. A careful perusal of the demarcation report dated 11.3.2001 clearly demonstrates that the Local Commissioner did not conduct demarcation strictly in terms of the reference and order dated 7.8.2000 passed by the learned trial Court, but rather a Local Commissioner acting on the basis of the statement of plaintiff Ex.PWl/A recorded at the time of demarcation gave demarcation report, if any, on the basis of Aks Shajra pertaining to the year, 1891-92 and 1910-11 Local Commissioner instead of giving specific report as was called by the Court referred to Aks Shajra Musabi pertaining to the year l891-92 and 1910-11 and concluded that as per Aks Shajra 1910-11 bamboo grove exists on khasra No.1096 owned by the plaintiff. Further perusal aforesaid report dated 11.3.2001 also suggest that the demarcation, if any, was not conducted in terms of the instructions contained in paragraph 10(2)(I) of Chapter 10 of the H.P. Land Records Manual, where it has been specifically provided that the boundaries in dispute should be relayed from the village map prepared at the last-settlement, meaning thereby that the demarcation, if any, was required to be carried out by the Local Commissioner on the basis of Aks Musabi prepared during the last settlement, whereas report of Local Commissioner dated 11.3.2011, nowhere suggest that he carried demarcation on the basis of a copy of Musabi prepared during last settlement… xxxxx 24…Admittedly, in the present case, the trial court, with a view to ascertain the boundary dispute, had appointed the Local Commissioner to give its report after measuring boundaries on the basis of the recent settlement record. But as has been discussed, the Local Commissioner appointed by the Court below gave its report on the basis of records pertaining to the years 1891-92, and 1910-11 and instead of giving a specific answer to the claim referred to him, gave his report on the basis of documents made available by the plaintiff at the time of demarcation. If at this juncture, report of Local Commissioner is considered to the extent where he has reported that if land is 16 2026:HHC:14206 measured in terms of Aks Shajra for the year 1891-92 and 1910- 11, bamboo grove falls in khasra No. 1096 owned by the plaintiff, then also report of Local Commissioner cannot be taken into consideration solely for the reason that the demarcation was not carried out in terms of instructions contained in paragraph 10(2) of Chapter 10 of H.P. Land Records Manual and, as such, same could not be looked into…” 21. Therefore, the learned Appellate Court had rightly rejected the demarcation report prepared by the local commissioner. 22. S.S Chauhan (DW-3) conducted the demarcation as per the order passed by the Collector. He issued the report (Ext.DW-3/A). This report reads that the demarcation of Khasra No. 243, 244, 245 (old 2265) was conducted, and no encroachment was detected during the demarcation. 23. This report shows that the demarcation was conducted as per the latest settlement record. The report has mentioned the detailed procedure for demarcation, and the learned Appellate Court had rightly accepted it. There was no misreading of the evidence, and this substantial question of law is answered accordingly. Substantial question of law No.2 17 2026:HHC:14206 24. It was submitted that the learned appellate Court was bound to appoint a fresh Local Commissioner after setting aside the report of the Local Commissioner. Reliance was placed upon the judgment of this Court in Bali Ram (supra) in support of his submission. This judgment will not help the appellants because this Court had found that the plaintiff had done everything that was possible for him to do, and he could not be non-suited for the fault of the revenue official. It was a case where no evidence except the discarded Tatima was available on record. It was laid down by this Court in Jagdish Ram vs Satpal, AIR 2017 HP 176, that the Court is not bound to appoint a local commissioner where another demarcation report was available on record. It was observed: “29. True, it is that the dispute interse parties is purely a boundary dispute and the same could be adjudicated effectively and properly after calling a report of the Local Commissioner. In the instant case since demarcation report relied upon by plaintiffs was not found to be in accordance with law, Court below had an option of appointing new Local Commissioner, but since there was overwhelming evidence available on record suggestive of the fact that there is no encroachment over the suit land by the defendants, as alleged in the plaint, learned Court rightly proceeded to decide the suit on the basis of pleadings as well as evidence available on record. Otherwise, also, as has been taken note of, there was another report of demarcation, i.e. Ex.OW-2/A carried out 18 2026:HHC:14206 on the spot by the revenue authorities, which was never assailed by the appellants-plaintiffs. Xxxx 34. In the instant case, it is not the case of the appellants- plaintiffs that the Court below failed to appoint a Local Commissioner in terms of Order 26, Rule 9 CPC, but the question is whether the Court, in the given facts and circumstances, ought to have appointed a fresh Commission after rejection of the report of the Local Commissioner appointed by it. 35. At the cost of repetition, it may be stated that since there was another demarcation report adduced on record by the defendants, which was never laid challenge by the appellants-plaintiffs, the Court had the option to decide the dispute either by appointing a new Commission or placing reliance upon another demarcation report adduced on record by the defendants. Since, in the instant case, there was another evidence, on the basis of which the controversy at hand could be decided by the Court below, ignoring the report of the Local Commissioner appointed by it, the learned Court below committed no illegality by not issuing a new Commission.” 25. In the present case, the plaintiff’s own documents made his version doubtful. The report of S S Chauhan proved that there was no encroachment and there was no need to appoint another local commissioner. 26. In Kangru Ram (supra), the matter was remanded to the learned Trial Court for conducting the demarcation because of the boundary dispute. Gopal Singh (supra) deals with the H.P. Tenancy & Land Reforms Act, which does not apply to the 19 2026:HHC:14206 present case. Hence, the cited judgments do not apply to the present case. 27. Thus, it cannot be said that the learned Appellate Court had erred in not appointing a Local Commissioner after discarding the report of the earlier Local Commissioner, and this substantial question of law is answered accordingly. Final order 28. In view of the above, the present appeal fails, and it is dismissed, so also the pending application(s), if any. 29. The record of the learned Courts below be returned along with a copy of this judgment. (Rakesh Kainthla) Judge 30th April, 2026 (ravinder)