The importance of obtaining a fresh demarcation report in accordance with the instructions issued by the Financial Commissioner.

V.M. Jain, J.—This Regular Second Appeal has been filed by the legal representatives of Prem Chand plaintiff against the judgments and decrees of the Courts below whereby the suit filed by the plaintiff was dismissed by the trial Court and the appeal filed by the plaintiff was also dismissed by the learned Additional District Judge.

2. The facts, which are relevant for the decision of the present appeal, are that Prem Chand plaintiff had filed a suit for possession and also for damages towards the use and occupation of the suit property by the defendants on the ground that the plaintiff was the owner of the suit property and that the defendants were in unauthorized possession thereof. The suit was contested by defendant No. 1. It was denied that he had trespassed into the suit land of the plaintiff in connivance with defendant No. 2 or otherwise or that he was liable to pay damages towards the use and occupation of the same. After hearing both the sides, the learned trial Court dismissed the suit of the plaintiff. In appeal, the learned District Judge had allowed the plaintiff-appellant to get the suit land demarcated by approaching the concerned revenue officer and as a result thereof, the plaintiff-appellant got the suit land demarcated and produced the demarcation report on the record before the learned District Judge. The other side had filed objections against the said demarcation report. Both sides produced evidence regarding the said report. The learned Additional District Judge after hearing both sides rejected the said demarcation report and also dismissed the appeal. Aggrieved against the same, the legal representatives of Prem Chand plaintiff have filed the present Regular Second Appeal in this Court.

3. When the appeal came up for hearing before me on 13.4.2005, the learned Counsel for the appellants submitted before me that the Additional District Judge had rejected the report of the Local Commissioner and still no other Local Commissioner was appointed. Notice, pending admission, was ordered to be issued to respondent No. 1 only and the records were also ordered to be requisitioned.

4. I have heard the learned Counsel for the parties and have gone through the record carefully.

5. A perusal of the lower appellate Court record would show that the learned District Judge in his order dated 3.4.2001, after noticing that the controversy in the case was as to whether the site where the defendant-respondent had constructed a Dhara is a part of land bearing Khaara No. 637 owned by the plaintiff-appellant or it is a part of the adjoining Government land, found that the said controversy could not be determined unless the site of the Dhara was demarcated at the spot. Accordingly, the plaintiff was directed to take steps for the demarcation of the site and to produce and prove the report of the demarcation. It was directed that he should apply to the concerned revenue officer for demarcation after impleading defendant-respondent in that application. In pursuance of the said order dated 3.4.2001 passed by the learned Additional District Judge, the plaintiffs moved appropriate application before the Assistant Collector, 1st Grade, Shimla who directed the Field Kanungo, Shimla to demarcate the land as per the provisions of law and thereupon the field Kanungo submitted his report dated 31.10.2001. Thereafter, the appellants produced copy of the said demarcaticn report dated 31.10.2001 before the learned District Judge and against the said report, defendant-respondent No. 1 filed objections. Thereafter, the case was adjourned for the evidence or the plaintiff-appellant in support of the aforesaid demarcation report and the evidence of the respondent in rebuttal. Both sides led evidence. Thereafter, the learned Additional District Judge, after hearing both the sides and perusing the record, set aside the aforesaid demarcation report and also dismissed the appeal, vide judgment and decree dated 31.12.2004. Aggrieved against the