The importance of obtaining accurate demarcation reports and the consequences of abusing the court's process.

TARLOK SINGH CHAUHAN, J.

1. The plaintiffs are the appellants, who have lost before both the learned Courts below and have filed the instant appeal. The parties hereinafter shall be referred to as the plaintiffs and defendants.

2. The plaintiffs filed a suit for recovery of possession of land comprised in Khata Khatauni No.6min/13min, Khasra Nos. 5505/849/1, measuring 1 biswa; 5505/849/2 measuring 1 biswa; 5505/849/3 measuring 1 biswa; 5505/849/4 measuring 17 biswas; 5505/849/5 measuring 1 biswa and Khasra No. 5505/849/6 measuring 14 biswas, situate in Mauza Shillai, Tehsil Shillai, District Sirmaur, H.P. (hereinafter to be referred as the suit land). The plaintiffs claimed to be the owners of total land measuring 19 bighas 14 biswas, comprised in Khasra No.5505/849 and claimed that this plot had been divided into two parts by ‘Paonta to Shillai’ road. Shri Gulab Singh was owner in possession of the land comprised in Khasra no.5508/849 from whom defendants No.1 and 2 purchased 4 biswas, defendants No.5 and 6, 10 biswas and defendants No.3 and 4 exchanged 1 bigha. Defendants No.3 and 4 thereafter started interfering and the same consequently led to filing of a suit for injunction, but the same was dismissed. However, in the meantime, the demarcation was obtained by the plaintiffs in which it was pointed out that a part of the suit land had been occupied by the defendants either by raising fence, khokha etc. This possession was taken somewhere in the year 2003 which gave the plaintiffs’ cause of action to file the aforesaid suit.

3. Defendants No.1 and 2 resisted and contested the suit by filing written statement wherein they took the plea that the plaintiffs have no cause of action as they have not encroached upon any portion of the suit land, as alleged. However, they admitted to have purchased the land from Shri Gulab Singh.

4. Defendants No.3 and 4 resisted and contested the suit by filing written statement wherein preliminary objections regarding maintainability, cause of action etc. were raised. It was contended that since there was a government road in between the plots, therefore, there was no question of any encroachment. They also pleaded that in view of the decision of the previously instituted suit to the effect that there was a road in between the suit land and the land of the defendants, the instant suit was hit by the principle of res judicata.

5. Likewise, defendants No.5 and 6 also resisted and contested the suit by filing written statement wherein preliminary objections regarding maintainability, cause of action, suit being hit by Order 2 Rule 2 CPC, were taken. On merits, it was contended that there was a road in between two parcels of land, so there was no question of their having encroached upon the suit land, especially, when the road was still in operation.

6. On the basis of the pleadings of the parties, the learned trial Court on 22.12.2005 framed the following issues:-

“1. Whether the plaintiffs are owner of the suit land, as alleged? OPP.

2. If issue No.1 is held in affirmative, whether the plaintiffs are entitled to the decree for possession? OPP.

3. Whether the plaintiffs have no cause of action? OPP.

4. Whether the suit is not maintainable? OPD.

5. Whether the suit is hit by the principle of resjudicata, as alleged? OPD.

6. Relief.”

7. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiffs.

8. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiffs filed an appeal before the learned first appellate Court, which too came to be dismissed vide judgment and decree dated 30.11.2017.

9. It is against this judgment that the plaintiffs have filed the instant appeal merely on the ground that once the report of the Local Commissioner as relied upon by the plaintiffs had been discarded by the Courts below, it was incumbent upon the Court to have appointed another Local Commissioner for demarcation of the boundaries.

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