The demarcation report and credible witness testimonies played a crucial role in determining the absence of encroachment, influencing the court's decision.

Chander Bhusan Barowalia, J.

By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No.70 of 2004, dated 11.5.2005, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Senior Division), Hamirpur, in Civil Suit No.18 of 1998, dated 15.5.2004.

2. Material facts necessary for adjudication of this Regular Second Appeal are that plaintiff/appellant (hereinafter referred to as the ‘plaintiff’) maintained a suit for Permanent Prohibitory Injunction against the defendants/respondents (hereinafter referred to as ‘defendants’) alleging that he is co-owner-in-possession, as co-sharer of the suit land comprised in Khata No.57 min, Khatauni No.140, Khasra No.553, measuring 4 kanals 9 marlas, situated in Tika Jakhyol, Mauza Mehalta, Tehsil Bhoranj, District Hamirpur. There is a road on the suit land, but defendants have no right, title or interest therein and are stranger to the suit land. Defendants started interfering in the suit land by digging the same adjoining to their own and possessed land for raising construction of a house. Defendants did not desist from their unlawful acts, despite repeated request.

3. Defendants contested the suit by raising preliminary objections qua cause of action, estoppel, maintainability and dismissal of suit with special costs, under Section 35-A of the Code of Civil Procedure. On merits, defendants stated that the suit land was ‘Gair Mumkin Raste’ owned by so many persons including the plaintiff. They had been using the alleged path for the last fifty years. Defendants never encroached upon the suit land, as no construction over the suit land was raised by the defendants. Rather, the construction was made on their owned and possessed land of Khasra Nos.518, 519 and 520 comprising of Khasra No.45.

4. From the pleadings of parties, the learned trial Court framed following issues :

“1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for ? OPP.

2. Whether in the alternative, the plaintiff is entitled to the decree for possession by way of demolition of such construction as prayed for ? OPP.

3. Whether the plaintiff has no cause of action to file the suit ?OPD.

4. Whether the plaintiff is estopped from filing the suit by his own act and conduct ? OPD.

5. Whether the suit is not maintainable as alleged ?OPD.

6. Whether the defendants are entitled to special costs under Section 35-A CPC ? OPD.

7. Whether the defendants are using the path through the land in suit from the time of their ancestors as alleged ? OPD.

8. Relief.”

5. The learned trial Court after deciding Issues No.1 to 6 in negative, Issue No.7 in affirmative, dismissed the suit.

6. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned District Judge, Hamirpur, assailing the findings of learned Trial Court being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 10.10.2006, on the following substantial question of law:

“Whether the two Courts below ought not to have placed reliance upon the demarcation report Ex.DW3/A, because that report pertained to demarcation of Khasra No.517 adjacent to the suit land and not to the suit land itself ?”

7. Mr. Bhuvnesh Sharma, learned counsel appearing on behalf of the appellant has argued that the learned Court below without appreciating the evidence and facts, which have come on record to its true perspective and the fact that Khasra No.553 was joint inter se the appellant-plaintiff and other co-owner and defendants were having no right thereon cannot raise any construction on Khasra No.553. The learned Court below has not taken into consideration the