JUDGMENT :

MANSOOR AHMAD MIR, J.

1. This judgment will lift the veil of the civil suit, which was instituted by plaintiff Shri Chiragu Deen on 15th December, 1988, and came to be decreed by the Sub Judge 1st Class, Shimla, District Shimla (hereinafter referred to as "the trial Court") vide judgment and decree, dated 24th February, 1995. Defendant No. 1Shri Ranjeet Khanna, feeling aggrieved, questioned the same before the Additional District Judge, Shimla (hereinafter referred to as "the First Appellate Court") by the medium of Civil Appeal in terms of the mandate of Section 96 of the Code of Civil Procedure (hereinafter referred to as "CPC"), was dismissed vide judgment and dated 11th January, 2001, confirmed the findings recorded by the trial Court.

2. Defendant No. 1 Appellant has invoked the jurisdiction of this Court in terms of Section 100 of the CPC, i.e. Civil Second Appeal, which is on the Board of this Court right from 27th April, 2001. Notice was issued to the respondents and operation of the impugned judgment and decree was stayed. The appellant-defendant No. 1 has questioned the judgments and decrees passed by both the Courts below on the grounds taken in the memo of Second Appeal.

3. Precisely, the case of the appellant-defendant No. 1 put forth in the memo of Civil Second Appeal is that the application for amendment filed by him was rejected by the First Appellate Court illegally and mechanically, that too on the ground of delay. Further contended that the trial Court as well as the First Appellate Court has also wrongly relied upon the report of the Commissioner. It has been further contended by the appellant that he had moved an application under Order 26 Rule 10 CPC read with Order 41 Rule 27 and Section 151 CPC before the First Appellate Court for summoning the Commissioner and permitting the appellant-defendant No. 1 to cross-examine him, which was rejected. It is also averred that both the Courts below have discussed the evidence erroneously and based the findings on report of the Commissioner, which is inadmissible. The demarcation conducted by the Commissioner was not in accordance with law, thus, both the judgments suffer from non-application of mind, are perverse. The appellant defendant No. 1 has also annexed separately the memo of substantial questions of law, which contains eight substantial questions of law. This Court, while hearing the learned counsel for the parties, admitted the appeal and framed the following three substantial questions of law vide order, dated 3rd August, 2001:

"1. Whether the lower appellate court has wrongly rejected the application for amendment of the written statement filed by the defendant-appellant"

2. Whether the lower appellate court has wrongly rejected the application made under Order 26 Rule 10 read with Order 41 Rule 27, of the Code of Civil Procedure"

3. Whether the defendant-appellant is entitled to protection under Section 60 of the Easement Act"

4. This file has remained on dockets of this Court for the last more than thirteen years and came up for consideration before this Bench on 7th March, 2014 and following additional substantial question of law was framed in terms of the proviso to Section 100 CPC and the parties were directed to argue on the said substantial question of law also:

"4. Whether the findings recorded by the trial Court and the First Appellate Court are perverse?"

5. I have heard learned counsel for the parties at length.

6. It is profitable to give brief resume of the case of the plaintiff-respondent No. 1 before it is held whether any substantial question of law is involved and whether the interference is required.

7. The plaintiff-respondent No. 1 had filed a suit for permanent injunction and mandatory injunction with the prayer that the defendant No. 1 appellant be restrained from causing interference with the possession of the plaintiff-respondent No.1 over the land falling in khasra No. 102/E, measuring 20229 sq. yards situated at Station Ward