The reliance on the demarcation report by the lower courts was justified, as it found no encroachment on the suit land. The plaintiff failed to provide evidence to challenge the report, and therefore, the denial of mandatory injunction was upheld.

JUDGMENT :

SATYEN VAIDYA, J.

1. By way of instant Regular Second Appeal, appellant has assailed judgment and decree dated 25.07.2009 passed by learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 130-G/XIII-2008 whereby the judgment and decree dated 12.09.2008 passed by learned Civil Judge (Junior Division), Court No. 2, Dehra, District Kangra, H.P. in Civil Suit No. 26/2004 was partly modified.

2. Appellant was the plaintiff and respondents were defendants before the learned trial Court. The parties hereinafter shall be referred to by the status which they held before the learned trial Court.

3. Brief facts necessary for adjudication of appeal are that plaintiff filed a suit for permanent prohibitory and mandatory injunction against defendants seeking prayer to the following effect:

“It is therefore humbly prayed that decree of prohibitory, permanent and mandatory injunction restraining the defendants from interfering or raising any structure on the suit land comprising Khata No. 37, Khatauni No. 38, Khasra No. 891, measuring 0-00-69 hectares, situated in Mohaal and Mauza Bara, Teh. Dehra, Distt. Kangra, as prayed in heading of the plaint may kindly be passed in favour of the plaintiff and against the defendants at their cost.”

4. Plaintiff filed the suit on the premise that he was owner in possession of the suit land measuring 0-00-69 hectares comprised in Khasra No. 891 in Mohal and Mauza Bara, Tehsil Dehra, District Kangra, H.P. (hereinafter referred to as the ‘suit land’) and he apprehended interference and encroachment on suit land as on 11.02.2004 the defendants allegedly had stacked building material on the suit land and had threatened to forcibly occupied the same.

5. In defence, the defendants raised preliminary objections qua maintainability of the suit, cause of action, estoppel and valuation etc. On merits, the ownership of plaintiff qua the suit land was not denied. The portion on which defendant No. 1 claimed his possession was stated to be comprised in Khasra No. 884. It was further submitted that the old house of defendant No. 1 was demolished and new house was being constructed on the same area. The allegations of plaintiff that the defendant intended to raise construction on the suit land were specifically denied.

6. On the basis of pleadings of the parties, learned trial Court framed the following issues:

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

2. Whether plaintiff is entitled for mandatory injunction, as prayed for? OPP

3. Whether the suit is not maintainable? OPD

4. Whether the plaintiff is estopped by his act, conduct and acquiescence form filling the suit? OPD

5. Relief.

Issues No. 1 and 2 were decided in negative, issue No. 3 was decided in affirmative, whereas issue No. 4 was decided as not pressed. The suit of the plaintiff was accordingly dismissed. In first appeal plaintiff succeeded partly. Learned lower appellate court passed a decree of permanent prohibitory injunction in favour of plaintiff. As regards prayer for mandatory injunction, the same was denied. Hence, this appeal.

7. Instant appeal was admitted on 21.12.2009 on the following substantial questions of law:

1. Whether the Court below has erred in replying upon report of the Local Commissioner Ext. OW-1/A when the same does not fall within the parameters of the instructions of the Financial Commissioner.

2. Whether the lower appellate Court has erred in not granting mandatory injunction regarding suit property in favour of the appellant?

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

9. The specific relief claimed by the plaintiff was in respect of Khasra No. 891 measuring 0-00-69 hectares. The suit was preferred on apprehension that the defendants might violate the boundaries of Khasra No. 891 and might raise construction thereon. It was also averred that in case the defendants succeeded in raising construct