(Sanjay Karol, J.) - By way of present appeal, the plaintiffs has assailed the judgment and decree dated 25.9/2003 passed by the Addl. District Judge, Sirmaur District at Nahan in Civil Appeal No. 22/1 of 2002 titled as Udai Ram & another vs. Ram Lal.

2.For the purpose of convenience, appellants are hereinafter referred to as ‘the plaintiffs’ and the respondent is referred to as ‘the defendant’.

3.Plaintiffs suit is for possession of land measuring 1 biswa 7 biswacies bearing Khasra No. 322/85/1 situated in village Sataun, Tehsil Paonta Sahib, District Sirmaur, H.P. The defendant purchased land adjacent to the suit land and started raising construction thereupon. A dispute arose as to whether the defendant had actually encroached upon the plaintiffs land and raised construction thereupon. Shri Inder Singh son of one of the plaintiffs on 30.12.2001 moved an application and got the land demarcated from the Tehsildar, Paonta Sahib in the presence of Shri Kuldeep Singh, son of the defendant. It was so found that the defendant had encroached upon the plaintiffs’ land, situate on Khasra No. 322/85/1 carved out of the original Khasra No. 132/85. Inspite of plaintiffs’ request the possession was not handed over by the defendant and consequently the suit for possession was filed.

4.Importantly in the written statement, defendant has not denied the plaintiff’s ownership of Khasra No. 322/85 but has denied encroachment thereupon. On merits, it is so pleaded that the construction (residential house) was carried out in the year 1990. On the basis of illegal demarcation report, the plaintiffs’ son Inder Singh filed Civil Suit No. 210/1 of 2000 titled as Inder Singh vs. Ram Lal, which was dismissed on 29.12.2001 and, therefore, the present suit (subsequent) is an abuse of process of law and has been filed only to harass the defendant.

5.On the pleadings of the parties, the trial Court framed the following issues:-

“1. Whether the plaintiffs are entitled for possession of land comprised in Khasra No. 322/85/1 on the basis of title? ....OPP

2. Whether the defendant raised the house on the suit land in the year 1990. If so, its effect? .... OPD

3. Whether the demarcation conducted by the Tehsildar, paonta Sahib, is illegal? ..... OPD

4. Relief.”

6.Plaintiffs witnesses S/Shri Jalam Singh (PW-2) and Shanti Ram (PW-3) supported the version of the plaintiffs. Shri Devender Singh Kanwar (PW-4) Tehsildar, who had carried out the demarcation, under the instructions of Sub Divisional Magistrate deposed that he had issued a notice to defendant Ram Lal and inspite of that he did not participate in the demarcation proceedings. The method adopted by him for carrying out the demarcation was elaborated by him in his testimony. The demarcation report is Ext. A-2.

7.Defendant Shri Ram Lal (DW-1) deposed that he purchased land bearing Khasra Nos. 573/315 and 539/322 measuring 2 biswas and in the year 1990 constructed a house thereupon. He, however, admitted his son being present at the time of demarcation proceedings. Defendant placed on record certified copies of the revenue record i.e. jamabandies Exts. D-1, D-2, D-3, D-4 & D-5 pertaining to different years to prove ownership and possession of his land. Certified copy of the judgment and decree passed in civil Suit No. 210/1 of 2000 was exhibited as Ext. A-3.

8.Issue No. 1 was decided against the plaintiffs and issues No. 2 & 3 were decided in favour of the defendant. Plaintiffs’ suit was dismissed vide judgment and decree dated 29.12.2001 passed by the Sub Judge 1st Class (2), Paonta Sahib, District Sirmaur, in Civil Suit No. 210/1 of 2000 titled as Inder Singh vs. Ram Lal with the following observations:-

“By applying the aforesaid dictum of law, and demarcation report Ext. A2, it is found that compliance of Instruction No. 1 was not carried out and the fixation of boundary is a quasi judicial function affecting the civil rights of the parties. Though, report and order Ext. A