FAO/80/2026 on 13 October 2026

1 2026:HHC:44975 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.80 of 2026 Reserved on: 05.10.2026 Date of decision: 13.10.2026 Uploaded on Website: 13.10.2026 ____________________________________________________ Dhani Ram …..Appellant Versus Indru ……Respondent ____________________________________________________

Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? ____________________________________________________ For the appellant: Mr. Lokesh Thakur, Advocate, vice Mr. G.R. Palsra, Advocate. For the respondent: Mr. B.M. Chauhan, Senior Advocate, with Mr. Amit Himalvi & Ms.Kamakshi Tarlokta, Advocates. Sushil Kukreja, Judge The instant appeal is maintained by the appellant- defendant (hereinafter referred to as the defendant), under Order 43, Rule 1(U) of the Code of Civil Procedure (CPC), against the judgment and decree dated 27.02.2026, passed by the learned Additional District Judge, Sundernagar, District Mandi, HP, whereby the appeal preferred by the respondent/plaintiff

Whether reporters of Local Papers may be allowed to see the judgment?

2 2026:HHC:44975 (hereinafter referred to as the plaintiff) under Section 96 of CPC against the judgment and decree dated 18.10.2024, passed by the learned Civil Judge, Court No.2, Sundernagar, District Shimla, was allowed and the case was remanded back to the Trial Court for fresh adjudication with further direction to appoint a fresh Local Commissioner or in alternative, direct the same Local Commissioner to conduct the demarcation of the suit land afresh and then after affording the concerned parties to file objections against the said report and disposing of the objections, if any, within the frame work of law, proceed to dispose of the suit on merits.

2. Brief facts of the case are that the plaintiff filed a suit under Sections 37, 38 & 39 of Specific relief Act for permanent prohibitory and mandatory injunction against the defendant, stating therein that he was owner in possession of the land comprised in Khewat No.146, Khatuni No.152, Khasra Nos.242, 244, measuring 10-14-11 bighas, situated in Mohal Daraman, Tehsil Sundernagar, District Mandi, HP (hereinafter referred to as the suit land). The defendant was also owner of the adjoining land comprised in Khewat No.154, Khatauni No.160, Khasra Nos.240 & 243, measuring 04-04-19 bighas and he raised construction of

3 2026:HHC:44975 house and cowshed over the land of the plaintiff comprised in Khasra No.242 and also cut trees from the suit land without the permission of the plaintiff.

3. The defendant resisted and contested the suit by filing the written statement and denied the averments made in the plaint and prayed for dismissal of the suit.

4. On the pleadings of the parties, the learned Trial Court framed the following issues on 26.07.2014:- “1. Whether the plaintiff is entitled for the decree of permanent prohibitory injunction, as prayed? ...OPP

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

3. Whether the plaintiff has got cause of action to file the present suit? ..OPD.

4. Whether the suit is not maintainable? ...OPD

5. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? ..OPD.

6. Relief.”

5. After parties led their evidence, the suit of the plaintiff was dismissed. Feeling aggrieved and dissatisfied, the plaintiff preferred an appeal against the judgment and decree dated 18.10.2024, passed by the learned Trial Court, which was allowed by the learned First Appellate Court, vide judgment and decree dated 27.02.2026, and the case was remanded back to

4 2026:HHC:44975 the Trial Court for fresh adjudication with further direction to appoint a fresh Local Commissioner or in alternative, direct the same Local Commissioner to conduct the demarcation of the suit land afresh.

6. Feeling aggrieved/dissatisfied, the appellant- defendant preferred the instant appeal against the impugned judgment and decree dated 27.02.2026.

7. Learned vice counsel for the appellant/defendant that the learned First Appellate Court has fallen into error by remanding the case as a whole to the learned Trial Court to appoint fresh Local Commissioner to demarcate the suit land.

8. On the other hand, learned Senior Counsel for the respondent supported the impugned judgment and decree and contended that the learned First Appellant Court has passed the impugned judgment and decree after appreciating the evidence in its right and proper perspective.

9. I have heard learned vice counsel for the appellant as well as learned Senior Counsel for the respondent and also carefully gone through the record.

10. Perusal of the record reveals that the plaintiff had filed a suit for permanent prohibitory and mandatory injunction before

5 2026:HHC:44975 the learned Trial Court against the defendant and the said suit was dismissed. During pendency of the suit, the learned Trial Court had appointed a Local Commissioner, vide its order dated 23.05.2015, with the consent of the parties by exercising its powers under Order 26, Rule 9 of CPC. Thereafter, the Local Commissioner visited the spot and submitted his report on 01.07.2015. The defendant filed objections to the report of Local Commissioner, whereas, the plaintiff had accepted the same. However, these objections were not disposed of by the learned Trial Court. During pendency of the suit, the defendant got his land, comprised in Khewat Khatauni No.154/160, Khasra Nos.240 and 243, demarcated on 11.01.2017 and got ascertained his boundaries, which was subject matter of the said demarcation report. The learned Trial Court had dismissed the suit of the plaintiff on the following grounds:- “ (1) The report of the Local Commissioner appointed by the Court is not in accordance with principle/ guidelines

issued

by

learned

Financial Commissioner for demarcation of the land.

The findings of the Local Commissioner are also not consistent with the pleadings of the plaintiff.”

11. Perusal of the record also reveals the learned Trial Court had observed that the Local Commissioner appointed by it had found encroachment of the defendant in the suit land of the

6 2026:HHC:44975 plaintiff. The learned Trial Court had also observed that demarcation got conducted by the defendant of his own land from the revenue agency had been conducted in presence of both the parties. The said demarcation did not show any encroachment on behalf of the defendant in the suit land and the plaintiff also admitted in his cross-examination the correctness of that demarcation report. Hence, the learned Trial Court concluded that there was no encroachment on the part of the defendant in the suit land and the plaintiff had failed to prove the interference of the defendant in the suit land, as such, proceeded to dismiss the suit.

12. In a somewhat similar situation, in a case titled as Ram Lal & ors. Vs. Salig Ram & ors. reported in Latest HLJ 2019(SC) 473, the High Court dismissed the suit filed by the plaintiff on the ground that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions. The Hon’ble Supreme Court held that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not

7 2026:HHC:44975 have been dismissed for any irregularity on the part of Local Commissioner. Relevant paras of the said judgment read as under:- “2. At the outset, it could be noticed for a brief outline of the matter that the plaintiffs-appellants had alleged attempted encroachment over the land in question by the defendants. The Trial Court dismissed the suit. However, the First Appellate Court remitted additional issues for finding by the Trial Court on the question as to whether defendants had encroached over the land in question and to what extent; and for this purpose, the Trial Court was directed to appoint a Local Commissioner and to decide the matter after inviting objections on the report of the Commissioner. After report by the Commissioner, the defendants- respondents raised objections which were rejected and thereafter, the Trial Court returned its findings on the additional issues in favour of the plaintiffs. Thereafter, the Appellate Court allowed the appeal and decreed the suit. However, in second appeal by the defendants, the High Court found that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions; and while ruling that such report could not be relied upon and while further holding that there was no other evidence that the defendants had encroached over the land of the plaintiffs, proceeded to allow the appeal by its impugned judgment dated 06.11.2007.

3. Thus, the question calling for determination in this appeal is as to whether High Court was justified in setting aside the decree of First Appellate Court on the ground that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions? xxx xxx xxx xxx xxx xxx

17. The fact that the Local Commissioner’s report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner’s report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was

8 2026:HHC:44975 suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner’s report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.”

13. In the case on hand also, the learned First Appellate Court has rightly observed that when the learned Trial Court did not find the report of the Local Commissioner, appointed by the Court itself in accordance with law, then it was incumbent upon the learned Trial Court to get the land re-demarcated from the same Local Commissioner or from some other person and it could not have abandoned report of the Local Commissioner stating that it was not in consonance with the guidelines governing the demarcation of the land, nor could it rely upon the demarcation got conducted by the defendant of his own land to

9 2026:HHC:44975 do so. Moreover in the demarcation got conducted by the defendant, the suit land was not the subject matter as such demarcation report could not have bearing on the adjudication of the rights of the plaintiff qua the suit land. Therefore, the learned First Appellate Court has rightly set-aside the judgment and decree dated 18.10.2024, passed by the learned Trial Court and remanded the case back to the Trial Court for fresh adjudication, with further direction to appoint a fresh Local Commissioner or in alternative direct the same Local Commissioner to conduct the demarcation on the suit land afresh as per the guidelines of the learned Financial Commissioner and then after affording the concerned parties to file objections against the said report and disposing of the objections, if any, within frame work of law, proceed to dispose of the suit on merits.

14. Consequently, in view of what has been discussed hereinabove, no interference is required in the impugned judgment and decree dated 27.02.2026, passed by the learned Additional District Judge, Sundernagar, District Mandi, HP and the instant appeal, which sans merits, deserves dismissal and is accordingly dismissed.

10 2026:HHC:44975

15. The present appeal is disposed of accordingly, so also the pending applications, if any. Interim direction, if any, is ordered to be vacated.

( Sushil Kukreja ) Judge

October 13, 2026 (V.Himalvi)