The onus is upon the plaintiff to prove the encroachment and produce the relevant record before the Revenue Official to enable demarcation. The Court cannot create evidence in favor of a party.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment and decree dated 31.08.2009, passed by the learned District Judge, Solan, H.P, vide which, the appeal filed by the present appellant (plaintiff before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before the learned Trial Court for seeking a permanent prohibitory injunction restraining the defendants from interfering with the land comprised in Khata Khatauni No.3min/122, Khasra No. 1394/681/1, measuring 15 sq. meters situated in Mauza Lower Bazar Solan, Tehsil & District Solan, H.P. (hereinafter referred to as the suit land). It was pleaded that the plaintiff is a co-owner in possession of the suit land. The suit land was transferred to the plaintiff by Sh. Dantu Ram and mutation No. 806 of exchange was attested. The suit land leads to Khasra No. 1396/681/2, on which the house of the plaintiff is situated. The suit land is the only way to reach the house of the plaintiff. The defendant has no right, title or interest over the suit land. He is threatening to interfere with the same by raising a retaining wall. He was requested not to do so but in vain. Hence, the suit was filed for seeking the relief mentioned above.

3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and the plaintiff being estopped from filing the present suit by his act and conduct. The contents of the plaint were denied on merits. It was asserted that the defendant is owner in possession of the land bearing Khasra No. 1212/680 measuring 100Sq. meters, which is located adjacent to the suit land. The defendant has constructed a boundary wall on his land. The plaintiff is discharging the water towards the boundary wall. The boundary wall collapsed in September 1999. The defendant has a right to reconstruct his damaged wall. The plaintiff is trying to encroach upon the land of the defendant without any right to do so. Hence, it was prayed that the suit be dismissed.

4. A counterclaim was filed for seeking permanent prohibitory injunction for restraining the plaintiff from interfering with the land of the defendant bearing Khasra no. 1212/680, measuring 100 sq. meters. It was asserted that the plaintiff was discharging water towards the land of the defendant. There was a boundary wall on the land of the defendant, which collapsed due to the discharge of the water. The plaintiff is encroaching upon the land of the defendant without any right to do so. Hence, the injunction was sought against the plaintiff.

5. A written statement was filed to the counterclaim denying its contents. It was asserted that the defendant is not sure about his boundaries and he is trying to extend his boundaries and encroach into the land of the plaintiff. The counterclaim was filed without any basis; hence, it was prayed that the counterclaim be dismissed.

6. Learned Trial Court framed the following issues on 10.01.2005:-

1. Whether the plaintiff is co-owner in possession of the suit land as alleged? OPP.

2. Whether defendant is interfering in the suit land in an illegal manner? OPP.

3. Whether the suit is not maintainable? OPD.

4. Whether plaintiff is estopped by his act and conduct to file the present suit? OPD.

5. Whether defendant is owner in possession of the land denoted by Khasra No.1212/680 situated at Mauja Lower Bazaar, Solan as alleged? OPD.

6. Whether plaintiff is interfering in Khasra No.1212/690 situated in Mauja Lower Bazar, Solan in an illegal manner? OPD.

7. Whether the defendant is entitled for the decree of permanent prohibitory injunction by way of counterclaim as prayed? OPD.

8. Relief.

7. The learned Trial Court framed additional issues on 27.10.2006:-

I. Whether the plaintiff is entitled for the relief of pe