IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 23rd DAY OF APRIL, 2022 BEFORE HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN FIRST APPEAL FROM ORDER NO.269/2019 BETWEEN:

YUVRAJ MOHAN AZAD, SON OF LATE SHRI JHURA RAM PRAKASH, RESIDENT OF PANTA NIWAS, PANCHHI AHATA, KHALINI, SHIMLA-171002 (HP) AT PRESENT RESIDENT OF HARI PRABHA NIWAS, BELOW SIRTAJ COMPLEX, KARYAN, MEHLI, DISTRICT SHIMLA (HP)-171 013 ….APPELLANT (BY MR. NEERAJ GUPTA, SR. ADVOCATE WITH MR. AJEET PAL SINGH JASWAL, ADVOCATE)

AND SH. GOVERDHAN SINGH, SON OF SHRI DEVI DASS, RESIDENT OF VILLAGE SUNDLI, P.O. AND TEHSIL JUBBAL, DISTRICT SHIMLA (HP), THROUGH HIS GENERAL POWER OF ATTORNEY SHRI RAKESH DHAUTA, SON OF SHRI GOVERDHAN SINGH, RESIDENT OF VILLAGE SUNDLI, P.O. AND TEHSIL JUBBAL, DISTRICT SHIMLA (HP).

...RESPONDENT (MR. G.D. VERMA, SR. ADVOCATE WITH MR. B. C. VERMA, ADVOCATE)

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The appeal coming on for admission after notice this day, the court passed the following:

O R D E R

Aggrieved by the impugned order dated 16.5.2019 rendered by the learned first appellate court, whereby it has ordered wholesale remand of the matter after setting aside the judgment and decree passed by the learned trial court, the plaintiff/appellant has filed the instant appeal.

2 The plaintiff filed a suit for possession and permanent prohibitory injunction against the defenfdant/respondent on the allegations that he is owner in possession of the land comprised in Khasra No. 415/3, measuring 3-01-56 hectares, situated in Mohal Shiv Nagar, Tehsil and District Shimla and the defendant is owner of the adjoining land comprised in Khasra No. 415/2.

3 As regards building plan of the appellant, the same was approved by the Special Area Development Authority on 21.7.2005, whereas that of the respondent was approved later on 8.8.2006. It was alleged that in the month of February 2006, which was one day before the date fixed for demarcation, the idefendant in absence of the plaintiff encroached upon the suit land by constructing the boundary wall and thereby covered the set-back area of the plaintiff mentioned at points A, B and C in the map. Hence, the suit.

4 The defendant contested the suit by filing written statement, wherein it was averred that the construction raised by him was as per sanctioned plan and it was denied that the set- back of the plaintiff was encroached by him. On the other hand, it was claimed that the plaintiff had raised the construction without leaving any set-back area. The boundary wall was raised in the month of August 2002 and not in the year 2006 as alleged by the plaintiff. It was further averred that the demarcation given by the Field Kanungo on 9.2.2006 was correct, but the plaintiff did not agree to the same. Besides, he also took preliminary objections regarding cause of actifon, estoppel, improper valuation, non-identification of the land, non-joinder of necessary parties and locus standi.

5 The defendant also filed counter claim seeking to restrain the plaintiff from causing any damage to the building of the defendant, situated over Khasra No. 415/2. It was further averred that the plaintiff had started plastering work, white wash etc., which was damaging his building.

6 On the basis of the pleadings of the parties, the learned trial court on 12.11.2008 framed the following issues:

i 1) Whether the defendant has encroached upon the suit land, as alleged?..OPP.

2) If issue No.1 is proved in affirmative whether the plaintiff is entitled for the possession of the encroached portion of the suit land, as alleged? OPP.

3) Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP.

4) Whether the plaintiff has cause of action to file the present suit? OPD

5) Whether the suit is not maintainable ?OPD

6) Whether the plaintiff is estopped from filing the present suit on account of his acts, deeds, etc, as alleged? OPD.

7) Whether the suit has not been properly valued for the purpos