The onus is on the plaintiff to prove the alleged encroachment, and the court may dismiss an application for appointment of a commissioner under Order 26 Rule 9 CPC if the dispute is not a boundary dispute.

JUDGMENT

Ajay Mohan Goel, J. - By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 107 of 2007 dated 09.06.2008, vide which learned Appellate Court while dismissing the appeal filed by the present appellant upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No. 1 Mandi, in Civil Suit No. 60-I/2004 decided on 16.03.2007, whereby learned trial Court had dismissed the suit filed by the predecessor-in-interest of the present appellants for permanent prohibitory injunction and in the alternative for vacant possession.

2. This appeal was admitted on 28.08.2008 on the following substantial questions of law:-

(a) Whether the learned courts below have misread and mis-appreciated the pleadings as also the evidence, both oral and documentary, especially the statements of PWs 1 to 5, Ex. PA, Ex. PB, Ex. PW-1/A, Ex. D-1, Ex. DW1/A and on account of such misreading and mis-appreciation of evidence the findings as such are vitiated?

(b) Whether in a boundary dispute, it was incumbent upon the court to have appointed a court commission suo motu or allowed the application under Order 26 Rule 9 CPC for appointment of commissioner for purpose of elucidation and enabling the court to do complete judgment and whether failure to do so has resulted in the impugned judgment being bad in law and deserves to be set aside?

(c) Whether previous demarcation report not relied upon by the first appellate court, which was relied upon by the trial court and on basis of corroboration suit was decreed, it was incumbent upon the learned first appellate court to have appointed a court commission suo motu for the purpose of correct demarcation and whether such failure has resulted in the judgment being vitiated, in view of the judgment of this Hon''ble Court in the case of Beli Ram vs. Mela Ram, 2003(1) SLJ 2004?

3. Brief facts necessary for adjudication of the present appeal are that the predecessor-in-interest of the present appellants Charan Dass, hereinafter referred to as the plaintiff filed a suit for permanent prohibitory injunction and in the alternative for vacant possession against the respondents/ defendants, hereinafter referred to as the defendants, on the pleadings that land comprised in Khewat Khatauni No. 225 min/262 min, Khasra No. 888 measuring 0-5-2 Bigha, situated in Mauja Kehar/ 290, Ill. Rajgarh-Balh, Tehsil Sadar, District Mandi, H.P., was owned and possessed by him and that he was having his residential house on a portion of the same, whereas the remaining suit land was being used by the plaintiff as courtyard and kitchen garden. As per the plaintiff, defendants without any right, title or interest over the suit land, had started causing interference over the same with a motive to raise construction thereupon w.e.f. 04.11.2004. It was further mentioned by the plaintiff that as he was serving in District Kullu, he was unaware about the illegal object of the defendants. He was intimated by his family members telephonically regarding illegal interference and encroachment over the suit land by the defendants and thereafter when the plaintiff came on leave on 12.11.2004, he found that the defendants had encroached upon his land measuring 0-110 Bigha by carrying out illegal construction over Khasra No. 888/1. Despite his request, defendants did not restraint themselves from raising illegal construction on his land and in these circumstances, the suit was filed by the plaintiff praying for the following reliefs:-

"It is, therefore, respectfully prayed that in view of the submissions made hereinabove, the suit of the plaintiff may kindly be decreed and a decree for permanent prohibitory injunction restraining the defendants not to cause any interference in the suit land and also not to raise any construction over the suit land in any manner be passed in favour of plaintiff and against the defendants. Further