The demarcation report and the need for substantial questions of law in a second appeal were central legal points established in the judgment.

JUDGMENT

Tarlok Singh Chauhan, J. - The plaintiff is the appellant, who after having lost before both the courts below, has filed this second appeal.

2. The plaintiff filed a suit for possession on the allegation that he was owner of the land bearing Khewat No.8 min, Khatauni No.10 min, Khasra No.1468/283 measuring 0-02-76 hectare situated in Mohal Pial, Mauza Lodwan, Tehsil Nurpur, District Kangra, H.P. He averred that the defendant was a stranger to the suit land and owns the land falling in Khasra No. 1469/283, which adjoins the land of the plaintiff. The defendant taking advantage of absence of the plaintiff raised shops and had thereby encroached upon the suit land to the extent of 26 meter x 3 meter measuring 0-00-78 HM in Khasra No. 1468/283 situated in Mohal Pial, Mouza Lodwan, Tehsil Nurpur, District Kangra, H.P. Further case of the plaintiff is that he asked the defendant to remove the shops from the suit land but he remained adamant. The plaintiff applied for demarcation wherein it was found that the defendant had encroached upon the land of the plaintiff to the extent of 0-00-78 HM measuring 26 meters x 3 meters, i.e. suit land. The plaintiff sought decree for possession with regard to the suit land, i.e. encroached by the defendant. Decree for permanent prohibitory injunction was also sought restraining the defendant from raising further construction in the suit land.

3. The defendant contested and resisted the suit by filing written statement. The case of the defendant was that the suit was not maintainable as suit land was still joint and had not been partition. The remedy of the plaintiff was to seek partition and not possession. The defendant alleged that he purchased the land vide sale deed dated 3.4.1989 and had constructed the shops and at no stage plaintiff protested the construction of shops. He was carrying on his business. He further averred that the demarcation was wrong and in violation of instructions of Financial Commission.

4. The learned trial Court framed the following issues on 26.6.2004:

1. Whether the plaintiff is entitled for the relief of possession of the suit land, as prayed for? OPP

2. Whether the plaintiff is entitled for relief of permanent injunction restraining the defendant from alienating, selling of suit land or from raising any construction there on, as alleged? OPP

3. Whether the suit is not maintainable the present from? OPD

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

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

6. Whether plaintiff estopped by his act and conduct laches and acquiescence from filing the present suit? OPD

7. Whether the suit is bad for non-joinder of necessary parties? OPD

5. After recording evidence and evaluating the same, the learned trial Court dismissed the suit on 11.11.2014 and the appeal preferred against the judgment and decree passed by the learned trial Court, also came to be dismissed by the learned first appellate Court vide judgment and decree dated 7.7.2017 constraining the appellant to file the present appeal.

6. Aggrieved by the judgments and decrees passed concurrently by the learned Courts below, the plaintiff has filed the instant appeal on the ground that both the learned Courts below have failed to appreciate the statements of the plaintiff and defendant in its true perspective as the statements of PW-1 to PW-4 have categorically proved encroachment on the suit land.

7. On the other hand, Ms. Devyani Sharma, learned counsel for the respondent, would contend that the findings recorded by both the learned Courts below are based upon correct appreciation of law, pleadings as also evidence on record and being pure finding of fact are immune from challenge in the instant second appeal.

8. I have heard the learned counsel for the parties and have also gone through the records of the case.

9. Pw-1 is plaintiff Mehar Singh, who while appearing in witness box, stated that the defendant had