IMPORTANT POINT
If the Local Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit.

JUDGMENT

Dinesh Maheshwari. J.

This appeal by special leave is directed against the judgment and decree dated 06.11.2007 in RSA No. 260 of 1995 whereby, the High Court of Himachal Pradesh set aside the judgment and decree dated 06.06.1995 passed by the District Judge, Bilaspur in Civil Appeal No. 154 of 1988 and consequently, dismissed the suit (No. 23/1 of 1986) filed by the plaintiffs-appellants for prohibitory injunction and in the alternative, for recovery of possession of the land in dispute.

2. At the outset, it could be noticed for a brief outline of the matter that the plaintiffs-appellants had alleged attempted encroachment over the land in question by the defendants. The Trial Court dismissed the suit. However, the First Appellate Court remitted additional issues for finding by the Trial Court on the question as to whether defendants had encroached over the land in question and to what extent; and for this purpose, the Trial Court was directed to appoint a Local Commissioner and to decide the matter after inviting objections on the report of the Commissioner. After report by the Commissioner, the defendants-respondents raised objections which were rejected and thereafter, the Trial Court returned its findings on the additional issues in favour of the plaintiffs. Thereafter, the Appellate Court allowed the appeal and decreed the suit. However, in second appeal by the defendants, the High Court found that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions; and while ruling that such report could not be relied upon and while further holding that there was no other evidence that the defendants had encroached over the land of the plaintiffs, proceeded to allow the appeal by its impugned judgment dated 06.11.2007.

3. Thus, the question calling for determination in this appeal is as to whether High Court was justified in setting aside the decree of First Appellate Court on the ground that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions?

4. In view of the short point involved, dilation on all the factual aspect is not necessary. A brief reference to the relevant background aspects would suffice. The plaintiff-appellants had filed the suit leading to this appeal essentially with the averments that they were owners and in possession of the land comprised in Khasra No. 146, admeasuring 1-8 bighas at village Saunkhar, Pargna Ajmerpur, Tehsil Ghumarwin, District Bilaspur and the defendants-respondents, being the owners of neighbouring Khasra No. 148 had been seeking to take over possession and to raise construction on a part of their land. The suit was contested by the defendants by filing their written statement. The Trial Court framed the following issues for determination of the questions involved in the matter:-

"1. Whether the plaintiffs are owners in possession over the suit land as alleged?OPP

2. If issue No. 1 is proved in affirmative, whether the defendants are interfering over the suit land as alleged? OPP

3. Whether the suit is not maintainable as alleged? OPD

4. Whether the suit is not within time as alleged? OPD

5. Whether the suit is not properly valued as alleged? OPD

6. Relief."

5. The Trial Court, by its judgment and decree dated 30.09.1988, while deciding issue No. 2 against the plaintiffs, proceeded to dismiss the suit. However, in the appeal preferred by the plaintiffs, the First Appellate Court, by its order dated 24.01.1991, remitted the following two additional issues for determination by the Trial Court:-

"2-A. Whether the defendants encroached upon the suit land, if so, to what extent and manner and since when its effect? OPP

2-B. In case issue No. 2-A is proved, whether the plaintiff is entitled to the alternative relief of possession? OPP"

The Trial Court was also directed to appoint a Local Commissioner and after inviting objections in regard to the report of Commissioner, to record its findings and to return the