The burden of proof lies on the plaintiff to establish the interference in a claim for permanent injunction, and the defendant's denial shifts the burden of proof to the plaintiff.

Heard learned counsel for the appellant.

2. This second appeal is directed against the judgment and decree dated 23-3-2012 passed by the District Judge, Rudraprayag in Civil Appeal No. 7 of 2011 Anil Nautiyal Vs. Brijendra Singh Jagwan as well as the judgment and decree dated 16-11-2011, passed by Civil Judge (Senior Division), Rudraprayag, in Civil Suit No. 14 of 2008, Anil Nautiyal Vs. Brijendra Singh Jagwan, whereby the trial court had dismissed the suit of the plaintiff-appellant.

3. Briefly stated the facts giving rise to the present appeal, according to the appellant, are that the plaintiff-appellant filed suit for a decree of permanent injunction against the defendant-respondent to restrain the defendant-respondent from interfering in the peaceful possession of the plaintiff over plot no. 459-A of village Sandar (Belani), district Rudraprayag. The plaintiff-appellant inherited this land from his father. The house of the respondent-defendant is constructed just ahead of the aforesaid land of plot no. 459-A and the respondent-defendant wanted to grab the land of the plaintiff illegally, therefore, on 9-6-2008, the defendant came on the plot no. 459-A and started to collect the stones over the said land. When the plaintiff-appellant came to know of this fact, he asked the defendant-respondent not to interfere with his (plaintiff’s) land. The defendant started abusing him and threatened him of dire consequences. The plaintiff-appellant therefore filed the suit for permanent injunction, which was registered as Civil Suit No. 14 of 2008 in the court of Civil Judge (Senior Division) Rudraprayag.

4. The suit was resisted by the defendant by filing his written statement. Defendant has denied the plaint allegations and in additional pleas, in paragraph no. 14 and 15 of the written statement, the defendant has specifically stated that the stones were collected by the defendant for construction of house over plot no. 462 and 463 of which he is a recorded Bhumidhar and that his father purchased this land measuring 1 Nali, 5 Muthi from Ghananand Kala son of Tara Datt Kala.

5. The learned Trial Court framed three issues in the suit. Issue No.3 was framed on the point of interference over plot no. 459-A by the defendant.

6. The plaintiff to prove his case got examined himself as P.W.1 and has also filed documentary evidence to prove his title on plot no. 459-A. On behalf of the defendant-Brijendra Singh Jagwan, he has examined himself as D.W.1 and D.W.2 Shambhu Prasad Kala son of Ghananand Kala.

7. The learned trial Court after hearing both the parties and on perusal of the evidence led by them, has held on Issue No.1 that the plaintiff is owner in possession of plot no. 459-A. On Issue No.3, the learned trial Court has observed that there is oath against oath of the parties. The learned trial Court also observed that the plaintiff has failed to prove that the defendant had been interfering with the plot no. 459-A and no other evidence was led by the plaintiff to discharge his burden on this point. The trial Court has also observed that no effort was made by the plaintiff to get survey of the disputed spot conducted by the commissioner to identify the land in question. Ultimately the suit was dismissed by the trial court by judgment and decree dated 16-11-2011.

8. Aggrieved by the said judgment and decree, the plaintiff-appellant preferred an appeal before the District Judge, Rudraprayag, which was registered as Civil Appeal No. 7 of 2011, Anil Nautiyal Vs. Brijendra Singh Jagwan. A commission was issued in the appeal. The learned appellate Court has observed that the commission was conducted in presence of both the parties and that no objection has been filed by either of the parties against the commissioner’s report. The learned appellate Court after hearing both the parties and after considering the commission report obtained in appeal has come to the conclusion that the plaintiff-appellant has miserably fai