(Sh. P. Mitra) - This revision petition has arisen on the recommendations of Commissioner Shimla division dated 16.1.2009 passed in revision no. 61/2006.

2. Briefly stated, the case is related to encroachment of Government of land which was encroached and the Patwari of the area who reported that Shri Ramu Ram Son of Shri Kadaria had encroached upon the Government Land comprised Khasra No. 284/1(0-02-06 hect), 288/1 (0-00-87 hects) and 286/1 (0-00.37 hects) total sic 258 hects in Revenue Village Chalrana, Tehsil Chopal, Shimla District. The Field Kanungo, after verification of the 'tatima' prepared by the patwari submitted the case to the Assistant Collector, IInd Grade, Nerwa, in chopal tehsil who initiated proceedings under section 163 of the H.P. Land Revenue Act against the present petitioner. Further during the proceedings before the Assistant Collector, IInd Grade, Nerwa on 28.5.2004, the petitioner constantly made a statement that he had raised construction over the disputed land under a bonafide belief that the land in question belonged to him. He further stated that he is not ready to vacate this land. The Assistant Collector, Und Grade, Nerwa passed ejectment orders against the petitioner on the same day. Aggrieved by this order the petitioner filed an appeal before the Collector Chopal sub division on the grounds that Assistant Collector. IInd Grade has illegally wrongly and without adopting the procedure as required under the law passed ejectment orders against him. He contended that he had not been given opportunity to file reply as well as non examination of the official witnesses. He alleged that the petitioner is in peaceful and hostile possession of the land since 1960, as such the order of the Assistant Collector, IInd Grade, Nerwa was arbitrary, wrong illegal and not binding on the appellant. The Collector, after hearing the parties, dismissed the appeal on 16.12.2005 and upheld the ejectment orders. The petitioner therefore filed a revision petition before the Commissioner, Shimla division who vide order dated 16.1.2009 has referred the matter to this court with her recommendations. She has observed that the lower court had relied upon the voluntary statement of the petitioner while arriving at its decision wherein the petitioner stated only that he had raised construction in bonafide belief that the land belong to him; he has not admitted any encroachment. She further observed that onus of proof or evidence was left to the petitioner without the State leading its evidence. The 'tatima' shows that there is private land adjoining the piece of land in which encroachment has been alleged, therefore as per Chapter X of the H.P. Land Record Manual, a demarcation for bringing out encroachment has to be done by an Officer not less than Assistant Collector, 1st Grade or Assistant Collector, IInd Grade but there is no demarcation report in the instant case. She has therefore recommended setting' aside the orders of the lower courts and remanding the matter to the Assistant Collector, 1st Grade for trial afresh.

3. 1 have heard the learned counsel for petitioner and Dy. D.A. (Rev.) for the State Learned counsel for petitioner argued that the courts below had failed to appreciate the evidence on record and have not followed the procedures which should have been followed, especially carrying out demarcation. The State had not led any evidence. Only the report of the Patwari/ Kanungo had come on record and thus the petitioner did not get opportunity of cross-examination. Learned counsel emphasized that the petitioner had nowhere admitted encroachment. Learned counsel pleaded that the recommendations of the Commissioner be accepted.

4. In reply, learned Oy. D.A. (Rev.) pointed out that there is admission on the part of the- petitioner of being in possession of the land and also construction thereon. Further it is not incumbent for the Revenue courts to go into question of title if the facts of the case do not so warran