The court appointed a Local Commissioner in terms of Order 26 Rule 9 CPC to adjudicate the boundary dispute for all times to come.

Sandeep Sharma, J.

Present regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 23.11.2006, passed by the learned District Judge, Bilaspur, HP, in Civil Appeal No. 78 of 2003, reversing the judgment and decree dated 28.6.2003, passed by learned Sub Judge, Ist Class, Bilaspur, H.P. in Civil Suit No. 3/1 of 2000.

2. The key facts necessary for adjudication of the present appeal are that the respondent/plaintiff filed suit for permanent prohibitory and mandatory injunction restraining the appellants/defendants from interfering or raising any construction over the suit land comprising of Khata Khatoni No. 4/6 min, Khasra No. 193 land measuring 5.14 Bighas situated in village Delag, Pargna and Tehsil Sadar, District Bilaspur, HP, in any manner by themselves or through their family members or in alternative if the appellants/defendants succeed in raising construction, to pass decree for demolishing the structure, in favour of the plaintiff and possession be restored to its original plaintiff- Nikra Ram.

3. Respondent/plaintiff, in the averments made in the plaint, claimed himself to be joint owner in possession of land comprised in Khata Khatauni No. 4/6 min Khasra No. 193, measuring 5.14 bighas, situated in village Delag, Pargna and Tehsil Sadar, District Bilaspur, HP along with other co-sharers. He also averred that defendants, who are also resident of the same village, have no right title over the suit land in any manner. As per plaintiff, the defendants, who are forceful persons intending to raise construction over the suit land by grabbing the land of the plaintiff and they have already collected the construction material near the suit land. Plaintiff averred that despite several requests, defendants are adamant to raise construction over the suit land and on the basis of aforesaid submissions having been made in the plaint, plaintiff claimed for decree of permanent prohibitory injunction restraining the defendants from interfering and raising construction over the suit land. Plaintiff also stated that cause of action arose to him on 5th January, 2000, when the defendants forcefully tried to raise construction over the suit land despite repeated requests of the plaintiff.

4. Defendants by way of written statement refuted all the averments contained in the plaint filed by the plaintiff and stated that they are not raising any construction over the suit land as alleged by the plaintiff. Defendants claimed themselves to be owner in possession of the adjoining land comprising of Khasra No. 191, where they raised boundary walls. Defendants also stated that land was demarcated by the revenue officials. Defendants categorically stated that neither they raised any construction nor they have any intention to raise the same over the suit land and alleged that plaintiff has filed the suit with malafide intention solely with a view to harass them unnecessarily. If the written statement filed by the defendants is read in its totality, it emerge that defendants denied the claim of the plaintiff in toto. They specifically denied that no construction, whatsoever, has been raised upon the land of the plaintiff, plaintiff filed replication to the written statement filed by the defendant, wherein while denying the contents of the written statement, plaintiff reasserted averments contained in the plaint. Learned trial Court on the basis of pleadings available on record framed following issues:-

1. Whether the plaintiff is entitled for permanent prohibitory injunction? OPP.

2. Whether the plaintiff is entitled for the mandatory injunction as prayed for? OPP

3. Whether the suit was not maintainable, as alleged? OPD.

4. Whether the plaintiff has no legally enforceable cause of action, as alleged? OPD.

5. Relief.

5. On the basis of evidence available on record, learned trial Court decided issue Nos. 1 and 2 against the plaintiff, whereas issue Nos. 3 and 4 were decided in favour of the defendants. Lear