JUDGMENT :

Rajiv Sharma, J.

This Regular Second Appeal is directed against the judgment and decree dated 1.1.2013 passed by learned District Judge, Hamirpur, in Civil Appeal No.24 of 2010.

2 "Key facts" necessary for the adjudication of this Regular Second Appeal are that the plaintiffs/respondents (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit for permanent prohibitory injunction against the defendant/appellant (hereinafter referred to as the "defendant" for convenience sake) for restraining him as also his agents from raising construction or changing nature of the land comprised in Khata No.277, Khatauni No.313, Khasra Nos. 1361/722/2 and 1361/722/1 measuring 0K-16 Marlas as per jamabandi for the year 1995-96, situated in Anu Kalan, Tappa Bajuri, Tehsil and District Hamirpur, H.P. A prayer for mandatory injunction was also made stating that the suit of the plaintiffs be decreed if during pendency of the suit, the defendant succeeded in raising any construction, removing its natural protection/support or dispossessing the plaintiffs. According to the plaintiffs, the defendant had dug a portion of the suit land and adjoining land to the extent of 50 feet in length, 9 feet in width and 4' 6" to 7' 6" in depth in such a way so as to cause damage to the house of plaintiffs and suit land by removing natural support/protection of earth.

3. The suit was contested by the defendant. According to the defendant, he laid foundation of his house in the month of December 1997 and slab was laid in the month of January 1998. The entire construction of the defendant was over in his own land comprised in Khasra No.1360/722 measuring 1 Kanal. The land of the defendant was at a higher level than that of the plaintiffs. The plaintiffs were claiming part of the land of the defendant on the basis of the order passed by the Collector dated 8.6.1999. He had challenged the order of the Collector before the Divisional Commissioner. The plaintiffs had wrongly and illegally raised a retaining wall of cement bricks over the land of the defendant. According to him, he had not removed any natural protection and support of the suit land.

4. No replication to the amended plaint was filed, whereas replication to the earlier written statement was filed by the plaintiff.

5. The learned trial court framed the issues on 29.3.2001 and decreed the suit in favour of the plaintiffs vide judgment and decree dated 30.12.2009, restraining the defendant from interfering over the land comprised in Khata No. 277, Khatauni No.313, Khasra Nos.1361/722/2 and 1361/722/1 measuring 0K-16 Marlas as per jamabandi for the year 1995-96. The suit of the plaintiffs was also decreed for mandatory injunction directing the defendant to restore the lateral support to plaintiffs' land.

6. Defendant feeling aggrieved by judgment and decree dated 30.12.2009 filed an appeal before learned first appellate court, who vide judgment and decree dated 1.1.2013 dismissed the appeal. Hence, this Regular Second Appeal.

7. Mr. G.D. Verma, learned Senior Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the plaintiffs, though were present in the Court, had not appeared as witnesses. He also argued that the plaintiffs had not led any evidence after the amendment of the plaint. He lastly contended that the statement of PW2 Madan Lal was wrongly relied on by both the courts below.

8. Mr. Sanjeev Bhushan and Mr. Rajnish Maniktala, Advocates, have supported the impugned judgments and decrees passed by both the courts below.

9. I have heard learned counsel for the parties and have gone through the impugned judgments carefully.

10. PW1, Kashmir Singh, is power of attorney of the plaintiffs. According to him, the plaintiffs are owners in possession of the suit land. On 27.8.1999, the defendant started digging the suit land from the side of his house with the help of 12-15 labourers. When he reached the spot, he noticed that the defendant had dug t