YOGINDER LAL SHARMA vs SUBHASHNI MAHAJAN deleted, Sushma Mahajan and anr

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 500 of 2006
Reserved on: 15.07.2026
Date of Decision: 22.07.2026
Yoginder Lal Sharma ...Appellant
Versus
Sushma Mahajan & anr. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes.
For the Appellants : Mr R.K. Bawa, Senior Advocate,
with Mr Abhinav Thakur,
Advocate.
For respondents No.2 and 4 : Mr Y.P. Sood, Advocate.
The names of respondents No. 1 and 3 have been deleted.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 21.08.2006 passed by the learned Additional
District Judge (Fast Track Court), Shimla (learned Appellate
Court), vide which the judgment and decree dated 01.10.2002
passed by the learned Sub Judge, Court No. 1, Shimla (learned
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Trial Court), dismissing the counter claim was upheld. (The
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 plaintiffs filed a civil suit before the learned
Trial Court for a permanent prohibitory injunction restraining
the defendant from interfering in the ownership and possession
of the plaintiffs over the suit land described in Para 1 of the
plaint. It was asserted that the plaintiffs had purchased the suit
land from the previous owner, Tikka Joginder Sain, vide
registered sale deed dated 05.08.1974 for ₹14,850/-. Plaintiffs
raised the construction of a double-storied building over part of
the suit land. They also put iron grills on the boundary of their
land. The defendant manipulated revenue entries in his favour
and started interfering with the plaintiffs’ ownership and
possession. Hence, a suit was filed to seek the relief mentioned
above.
3. The suit was opposed by filing a written statement
taking preliminary objections regarding the lack of cause of
action and the plaintiffs having suppressed the material facts
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from the Court. The contents of the plaint were denied on the
merits. It was asserted that the defendant’s land was located
adjacent to the plaintiffs’ land. The plaintiffs encroached upon
the defendant’s land. The suit was filed without any basis.
Hence, it was prayed that the suit be dismissed.
4. A counterclaim was also filed by the defendant,
asserting that he had purchased the disputed land mentioned in
para 1 of the counterclaim from Raja Hatinder Sen vide sale deed
dated 26.11.1993. The plaintiffs encroached upon a part of the
disputed land owned by the defendant. The defendant requested
the plaintiffs to vacate the disputed land in their possession, but
in vain. Hence, it was prayed that the mandatory injunction be
issued to remove the encroachment made by the plaintiffs.
5. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
6. A written statement was also filed to the
counterclaim, taking preliminary objections regarding the lack
of maintainability and cause of action, the counterclaimant
being estopped to file the counterclaim by his act, conduct and
acquiescence, and the counterclaim having been filed as a
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counterblast to the plaintiffs’ suit. It was asserted that Hitender
Sen had already sold his entire land, and the transaction
claimed by the defendant in his favour was a sham transaction.
It was specifically denied that the plaintiffs had encroached
upon the disputed land of the defendant. Therefore, it was
prayed that the counterclaim be dismissed.
7. The following issues were framed by the learned
Trial Court on 08.08.2001:
1. Whether the plaintiff is entitled for the relief of a
permanent prohibitory injunction, as prayed? OPP
2. Whether the suit of the plaintiff is not maintainable? OPD
3. Whether the defendant is entitled for the relief of a
mandatory injunction as per the counterclaim? OPD
4. Relief.
8. The parties were called upon to produce the
evidence, and plaintiff No.1 examined herself. The defendant
examined himself (DW1), and Inder Singh (DW2).
9. The learned Trial Court held that the plaintiffs were
the owners in possession of the suit land. The defendant was
interfering with their ownership and possession without any
right to do so. The plea taken by the defendant that the
plaintiffs had encroached upon his land was not proved by any
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demarcation. The defendant himself admitted that he had
obtained the demarcation, but no encroachment was detected.
He claimed that the encroachment was made after the previous
demarcation, but no demarcation was obtained to establish this
plea. The defendant was not entitled to the mandatory
injunction sought by him. Hence, the learned Trial Court
answered Issue No. 1 in the affirmative, Issue Nos. 2 and 3 in the
negative and decreed the suit filed by the plaintiffs and
dismissed the counterclaim filed by the defendant.
10. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the defendant filed an appeal, which
was decided by the learned Additional District Judge (Fast Track
Court), Shimla (learned Appellate Court). Learned Appellate
Court held that the dispute was over 7 meters strip of the land.
The plaintiffs failed to produce any evidence that the strip was
part of the suit land. They never obtained any demarcation to
establish this fact. Mere apprehension of the threat without any
overt act was not sufficient to grant the relief of an injunction.
The defendant had also not obtained any demarcation to
establish that the plaintiffs had encroached upon the disputed
land owned by the defendant. The learned Trial Court erred in
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decreeing the plaintiffs’ suit, but had rightly dismissed the
defendant’s counterclaim. Hence, the appeal was partly
allowed, and the judgment and decree passed by the learned
Trial Court granting the permanent prohibitory injunction was
set aside, but the dismissal of the counterclaim was upheld.
11. Being aggrieved by the judgments and decree passed
by the learned Appellate Court, the defendant has filed the
present appeal, which was admitted on the following
substantial questions of law on 01.08.2008:
1. Whether, in order to decide the real matter in controversy
with regard to the encroachment made by the plaintiffs
over the land of the defendant, as claimed in the
counterclaim, the learned Courts below, suo moto , should
have appointed a Local Commissioner to demarcate the
land in dispute?
2. Whether the learned Courts below had jurisdiction to
appoint a Local Commissioner suo moto if it is necessary
to elucidate any matter in dispute, including the matter
of ascertaining the factum of alleged encroachment over
the land of the defendant as claimed in the counterclaim?
12. I have heard Mr R.K. Bawa, learned Senior Counsel,
assisted by Mr Abhinav Thakur, learned counsel for the
appellant and Mr Y.P. Sood, learned counsel for respondent Nos.
2 and 4.
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13. Mr R.K. Bawa, learned Senior Counsel for the
appellant/defendant, submitted that the defendant had claimed
in the written statement that a demarcation be obtained and the
encroachment made by the plaintiff be removed. Therefore,
learned Courts below erred in holding that no prayer for
demarcation was ever made by the defendant. When there is a
boundary dispute, the Court can suo motu appoint a revenue
official to demarcate the boundary. The learned Courts below
erred in not exercising this jurisdiction vested in them and in
dismissing the counterclaim on the ground that no demarcation
was obtained. The defendant has filed the application for the
appointment of the local commissioner before this Court, and
the local commissioner should be appointed to settle the
dispute once and for all. The defendant had also obtained the
demarcation from the revenue authorities, in which the
encroachment by the plaintiffs on the defendant’s land was
detected. This document is essential to prove the plea taken by
the defendant that the plaintiffs had encroached upon the
disputed land. Therefore, he prayed that the applications be
allowed, and the judgments and decrees passed by the learned
Courts below be set aside. He relied upon the judgments of E.
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Achuthan Nair vs. P. Narayana Nair and another, 1987 SCC Online
SC 324 and Bali Ram vs Mela Ram, 2002 SCC Online HP 28, in
support of his submissions.
14. Mr Y.P. Sood, learned counsel for respondents No.2
and 4, submitted that the learned Courts below had rightly held
that no application for demarcation was filed before them. The
plaintiff admitted that he had obtained the demarcation in
which no encroachment was detected. Therefore, the plea taken
by him that the plaintiffs had encroached upon his land was
falsified by this admission. The demarcation sought to be
produced on record was conducted in the absence of the
defendant and is not valid. In any case, it was impermissible for
the defendant to obtain a subsequent demarcation without
setting aside the original demarcation obtained by him. The
Court cannot obtain the evidence in favour of a person.
Therefore, he prayed that the applications and the appeal be
dismissed.
15. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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CMP 1006 of 2006
16. The applicant/appellant has filed the present
application for the appointment of a local commissioner for
demarcating the disputed land and submitting the report about
the encroachment on the disputed land owned and possessed by
the applicant/appellant. Yoginder Lal (DW1) stated in his cross-
examination that he had obtained demarcation 2-3 times after
purchasing the land. He had filed an application for
demarcation before the Tehsildar, who had prepared a report of
demarcation (Ext.DX). He admitted that no encroachment by
any person was detected during the demarcation. He
volunteered to say that the plaintiffs had encroached on his land
after obtaining the demarcation.
17. The statement of the defendant clearly shows that he
had obtained demarcation multiple times. He had also obtained
a demarcation (Ext.DX) before filing the suit. It was laid down
by this Court in Radha Swami Satsang Beas Vs. State of H.P. ILR
1984 (HP) 317 that the report given by a revenue officer while
demarcating the land is final, and a fresh demarcation cannot
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be conducted unless the previous demarcation is set aside. It
was observed:
“Be it realised that a Revenue Officer exercising powers
under S.107 of the Act is a statutory authority exercising
powers and discharging functions entrusted to him under
the enactment and that the powers so vested are
exercisable by him and none other. If the Revenue Officer
has acted without or in excess of jurisdiction or has
committed any illegality or irregularity in the exercise of
his jurisdiction, such excess, error or irregularity is
curable in the exercise of revisional powers conferred by
S.17 of the Act but any attempt to do so in the purported
exercise of powers conferred by S.12 will be wholly
lacking in power, authority and jurisdiction. It is,
therefore, not possible to uphold the submission of the
learned Advocate General that the impugned direction
ordering fresh demarcation on the basis that the previous
delimitation was not proper could have been issued by
the second respondent in the exercise of the powers
vested in him under S.12 of the Act.
18. Similar is the judgment of the Hon'ble Supreme
Court in State of H.P. v. Mangat Ram, 1995 Supp (1) SCC 229,
wherein it was held at page 232:
“14. It is not denied before us that Assistant Collector II
Grade is a Revenue Officer as defined under Section 4(17)
read with Section 7 (Classification of Revenue Officers).
Therefore, such an Assistant Collector II Grade is the
competent authority to exercise statutory powers under
the Act. He can define the limits of any estate or of any
holdings, fields or other portion of any estate.
15. The revisional powers of the Financial Commissioner
could not be exercised merely because the Assistant
Collector, IInd Grade, has stated that the demarcation
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could be verified from the Senior Revenue Officer. The
revisional powers of the Financial Commissioner are
circumscribed by the statutory provision”.
19. This position was reiterated in Jeet Lal vs. Sita Ram
2002 H.L.J. 1173 , wherein it was held:
“14. In the present case, the plaintiff-petitioner filed a
suit alleging that a part of his land was being encroached
upon by the defendant. He himself obtained demarcation
from the competent Revenue Officer (Assistant Collector
IInd Grade), who found that there was no such
encroachment. As noticed earlier, the demarcation report
given by the competent Revenue Officer is final unless it
was set aside in the appeal. Section 107 of the HP Land
Revenue Act empowers the Revenue Officer to demarcate
the land and define the boundaries. In Gulaba vs Hari
Ram, 1982 Sim. L.C. 85, interpreting the provisions of
section 107 of the Revenue Act, it was observed that the
nd
Assistant Collector, 2 Grade, is a competent person to
effect the demarcation, and his report is final unless set
aside in appeal. It was also observed that even if the
nd
Assistant Collector 2 Grade himself states in his report
that the demarcation could be verified by the senior
Revenue Officer, such a report cannot be set aside in the
revisional power of the Financial Commissioner on that
ground . ”
20. Similarly, it was held by this Court in Shashi Pal vs.
Kuldeep 2018(2) Himachal Law Reporter 1135 that a fresh
demarcation cannot be ordered without setting aside the
previous demarcation. It was observed:
5. Learned Counsel submits that the demarcation report
already placed on record by the defendant cannot be
relied upon, being contrary to the instructions issued by
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the Financial Commissioner. Such submissions, however,
are contrary to the law laid down by the Apex Court in
State of H.P. vs. Mangat Ram, (1995) AIR(Supreme Court)
665 and Radha Swami Satsang Veas vs. State of H.P., (1984)
ILR(HP) 317 which has been considered by learned trial
Judge while arriving at a conclusion that unless and until
the demarcation conducted earlier is not set aside by
appointing another revenue official, no fresh
demarcation can be ordered. Whether the demarcation
report already on record is contrary to the instructions or
the law applicable has to be seen by the learned trial
Court at an appropriate stage during the course of further
proceedings in the suit. Therefore, at this stage, when the
demarcation report dated 20.12.2010 already exists on
record, no fresh demarcation of the land could have been
ordered, more particularly, when the demarcation
conducted previously was acceptable to the petitioner-
plaintiff also. The learned trial Court, therefore, has
rightly dismissed the application filed by the petitioner
with a prayer to appoint a local commissioner for the
demarcation of the suit land.
21. A similar view was taken in Jeet Ram versus Sita Ram
2002 HLJ 1173, wherein it was observed:
14. In the present case, the plaintiff-petitioner filed a suit
alleging that a part of his land was being encroached
upon by the defendant. He himself obtained demarcation
from the competent Revenue Officer (Assistant Collector
IInd Grade), who found that there was no such
encroachment. As noticed earlier, the demarcation report
given by the competent Revenue Officer is final unless it
was set aside in the appeal. Section 107 of the HP Land
Revenue Act empowers the Revenue Officer to demarcate
the land and define the boundaries. In Gulaba,
interpreting the provisions of section 107 of the Revenue
Act, it was observed that the Assistant Collector, 11th
Grade, is a competent person to effect the demarcation,
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and his report is final unless set aside in appeal. It was
also observed that even if the Assistant Collector 11th
Grade himself states in his report that the demarcation
could be verified from the senior Revenue Officer, such a
report cannot be set aside in the revisional power of the
Financial Commissioner on that ground .
22. Therefore, it is impermissible to carry out a fresh
demarcation without setting aside the earlier demarcation
conducted by the competent authority.
23. It was submitted that the encroachment was made
after the demarcation, and the earlier demarcation report is not
material. This submission cannot be accepted. The defendant
has not mentioned the date of encroachment in the written
statement, counterclaim or the statement on oath. He made a
vague averment that the plaintiffs had encroached upon a part
of the land owned and possessed by the defendant by affixing
angle iron railing grills upon it. Thus, the plea taken by the
defendant that encroachment was made after the previous
demarcation is not acceptable.
24. Inder Singh (DW2) stated that the plaintiff had
constructed a railing in the year 2000 after the filing of the suit.
This statement is not acceptable because had it been so, the
defendant who had filed a counterclaim would have sought an
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injunction to restrain the plaintiff from encroaching upon his
land. Therefore, the statement of Inder Singh is not sufficient to
hold that encroachment was made after the previous
demarcation.
25. It was submitted that the Court should suo motu
appoint a local commissioner in a boundary dispute. This
submission will not help the applicant/appellant because it is
not a boundary dispute but a simpliciter claim of encroachment.
It was laid down by this Court in Diwakar Dutt versus Ranjit Singh
1997 SLJ 242 that in a suit based on an encroachment, recourse
cannot be had to the Local Commissioner as the Court cannot
create evidence in favour of a party. It was observed: -
“4. It is too well-known that the Court is not
expected to create evidence for any of the parties to the
lis. It is for the plaintiff to prove that the defendant has
encroached upon his land, and he can do so by leading
evidence as is permissible under the Evidence Act. The
learned trial Court has held that no case has been made
out for the appointment of a Local Commissioner to
demarcate the suit land, and in my considered view, the
order does not suffer from any illegality, irregularity or
error of jurisdiction. Even otherwise, the order would not
amount to a case decided so as to call for interference
under Section 115 of the Civil Procedure Code. I am
supported in my view by a Division Bench judgment of
the Punjab and Haryana High Court reported in 1990(2)
S.L.J. 636 (Pritam Singh and another vs. Sunder Lal and
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others) . There is, thus, no merit in this revision petition
and the same is hereby ordered to be dismissed. No
costs.”
26. This position was reiterated in Jeet Ram versus Sita
Ram 2002 HLJ 1173, and it was observed: -
“8. It is well settled that if a suit is filed on the ground
that the other party has encroached upon the land of the
plaintiff, the plaintiff has to prove his case and show by
satisfactory evidence that his land has been encroached
by the defendant, and it is not necessary to appoint a
Local Commissioner for that purpose.”
27. Similarly, it was held in Naseeb Deen and another
versus Harnek Singh, CMPMO No. 208 of 2019, decided on
19.7.2019, that the onus is upon the plaintiff to prove the
encroachment, and when there is no evidence that the plaintiff
had approached the revenue authority for the demarcation of
the suit land, it is not permissible to appoint the Local
Commissioner to demarcate the suit land. It was observed:
Having heard learned counsel for the parties, this Court is
of the view that the impugned order is not sustainable in
the eyes of the law. It is not in dispute that the
application under Order XXVI, Rule 9 of the Code was
filed by the plaintiff before the learned Trial Court, even
before the issues stood framed by the learned Court
below. It is the allegation of the plaintiff that the
defendants are encroaching /have encroached upon the
suit land. It is a settled proposition of law that he who
alleges has to prove. Meaning thereby, because it is the
contention of the plaintiff that the defendants have
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encroached upon the suit land or are encroaching upon
the same, the onus is upon him to prove his case. There is
no material on record to demonstrate that the plaintiff,
at any stage, has approached the Revenue Authorities for
demarcation of the land in issue. In these circumstances,
the filing of the application by the plaintiff at a stage
when not even issues were framed by the learned Trial
Court, but obvious was an attempt to create evidence in
his favour, and this important aspect of the matter has
been completely overlooked by the learned Court below.
In other words, in the present case, the learned Trial
Court has fallen into the trap of the plaintiff by allowing
the application so filed by the plaintiff, and this has let
out a helping hand to the plaintiff to create evidence in
his favour at a stage when not even the issues were
framed. 10. Order XXVI, Rule 9 of the Code, inter alia,
provides that in any suit in which the Court deems a local
investigation to be requisite or proper for the purpose of
elucidating any matter in dispute, the Court may issue a
commission to such person as it thinks fit, directing him
to make such investigation and to report thereon to the
Court. Meaning thereby that it has to be the satisfaction
of the Court that a local investigation is necessary or
proper for the purpose of elucidating any matter in
dispute. This provision is not a tool that is to be
permitted to be used by the parties concerned to create
evidence in their favour. This important aspect of the
matter has also been lost sight of by the learned Trial
Court while passing the impugned order.
28. This position was reiterated in Ram Nath versus
Kuldeep Singh, CMPMO No. 272 of 2019, decided on 25.6.2019,
wherein it was observed:
Order 26, Rule 9 of the Code of Civil Procedure is not a
panacea that can be used by a litigant as a tool whenever
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the litigant feels that it is not in a position to prove its
case.
14. Order 26, Rule 9 of the Code inter alia provides that in
any suit in which the Court deems a local investigation to
be requisite or proper for the purpose of elucidating any
matter in dispute, the Court may issue a commission to
such person as it thinks fit, directing him to such
investigation and to report thereon to the Court.
15. In my considered view, primarily whenever any order
is passed, under Rule 9 of Order 26 of the Code, the
satisfaction has to be of the Court as to whether local
investigation for the purpose of elucidating any matter in
dispute is necessary or not. This satisfaction cannot be of
the plaintiffs or defendants. The plaintiff or the
defendant has to stand on its own legs, and provisions of
Order 26, Rule 9 of the Code cannot be used to garner or
gather evidence for them through the Court process. This
is exactly what has been held by the learned Court below
by way of the impugned order. The Learned Court has
held and rightly so that the onus is upon the plaintiffs to
prove their case, and the Court cannot lend a helping
hand and assist the plaintiffs to prove their case. These
findings returned by the learned Court below cannot be
said to be illegal as they are in consonance with the spirit
of the law with regard to the interpretation of Order 26,
Rule 9 of the Civil Procedure Code. Plaintiffs cannot be
permitted to a local commissioner appointed simply
because they have not been able to lead cogent evidence
to prove their case. That is not the intent of Order 26,
Rule 9 of the Code.
29. In the present case, the applicant/defendant has
come with a specific plea that the plaintiffs had encroached
upon his land. Therefore, it was for him to obtain the
demarcation from the revenue authorities and place the report
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on record. He cannot take recourse to the appointment of a local
commissioner to establish this fact in view of the binding
precedents of the Court.
29. In E. Achuthan Nair (supra), the Hon'ble Supreme
Court held that a suit for the fixation of boundaries and
demarcation is maintainable. In the present case, the suit has
not been filed for the fixation of boundaries and demarcation,
and the cited judgment does not apply to the present case.
30. In Bali Ram (supra), this court had found
discrepancies in the tatima. It was held that preparation of the
tatima was not within the purview of the parties, and if there
was some discrepancy, the Court should have appointed a local
commissioner to carry out the demarcation. In the present case,
there is no discrepancy in the tatima. The defendant admitted
that no encroachment was found in the demarcation obtained
by him, and the cited judgment does not apply to the present
case.
31. Consequently, the present application cannot be
allowed, and the same is dismissed. The application stands
disposed of.
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CMP 1007 of 2006 and CMP 454 of 2007
32. These applications have been filed for additional
evidence. It has been asserted that the applicant/defendant got
the disputed land inspected by an expert who had identified the
disputed land with the help of the revenue records and prepared
the spot map showing the plaintiffs’ encroachment. The
demarcation was also obtained, in which an encroachment was
detected. Both these documents are essential for the
adjudication of the dispute. Hence, it was prayed that these
documents be taken on record.
33. The report of demarcation dated 29.05.2007 shows
that the demarcation was conducted on the defendant’s
application, and it was found that plaintiff Subhashini Mahajan
had encroached upon Khasra No. 1233 by constructing an iron
railing. This report will not assist the defendant because it is not
shown that the factum of earlier demarcation was brought to
the notice of the revenue official conducting the demarcation.
Therefore, it was impermissible to carry out a fresh
demarcation without setting aside the earlier demarcation.
Further, the report of demarcation shows that 3 permanent
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points were not taken, and only the sides of the Khasra numbers
were joined. Therefore, the demarcation was not conducted as
2
per the law . Thirdly, the report of demarcation does not depict
the tatima showing the encroachment and will not assist in
passing an effective decree. Hence, this report of demarcation
cannot be taken on record because of these infirmities.
34. The defendant wants to place on record the spot map
in which the railing is shown in Khasra No.1233 by red lines.
This site plan has been prepared by an architect; however, he is
not competent to define the boundaries, and the report
prepared by him cannot be taken on record.
35. In any case, it was open for the defendant to obtain
the report from the architect or the revenue official during the
pendency of the proceeding before the learned Trial Court or the
Appellate Court. No reason has been assigned as to why such a
report was not obtained during the proceedings before the
learned Courts below. The sole purpose of placing the reports is
to get rid of the findings recorded by the learned Courts below
that the defendant had not placed on record any document
showing the encroachment. It was laid down by the Hon’ble
2
State of HP vs Laxmi Nand 1992 (1) ShimLC 307
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Supreme Court in N. Kamalam v. Ayyasamy, (2001) 7 SCC 503:
2001 SCC OnLine SC 905 that the additional evidence cannot be
led to fill in the lacuna left before the learned Trial Court. It was
observed:
19. Incidentally, the provisions of Order 41, Rule 27 have
not been engrafted in the Code so as to patch up the weak
points in the case and to fill up the omission in the Court
of Appeal. It does not authorise any lacunae or gaps in
evidence to be filled up. The authority and jurisdiction as
conferred on the appellate Court to let in fresh evidence is
restricted to the purpose of pronouncement of judgment
in a particular way. This Court in Municipal Corporation of
Greater Bombay v. Lala Pancham, AIR 1965 SC 1008, has
been candid enough to record that the requirement of the
High Court must be limited to those cases where it found
it necessary to obtain such evidence for enabling it to
pronounce judgment. In paragraph 9 of the judgment,
this Court observed:
". . . . . . . . . . . . . . . . This provision does not entitle
the High Court to let in fresh evidence at the
appellate stage where even without such evidence
it can pronounce judgment in a case. It does not
entitle the appellate Court to let in fresh evidence
only for the purpose of pronouncing judgment in a
particular way. In other words, it is only for
removing a lacuna in the evidence that the
appellate Court is empowered to admit additional
evidence. The High Court does not say that there is
any such lacuna in this case. On the other hand,
what it says is that certain documentary evidence
on record supports "in a large measure" the
plaintiffs' contention about fraud and mala fides.
We shall deal with these documents presently, but
before that, we must point out that the power
under Cl. (b) of sub-r. (1) of R. 27 cannot be
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exercised for adding to the evidence already on
record except upon one of the grounds specified in
the provision".
Further in Smt. Pramod Kumari Bhatia v. Om Prakash
Bhatia, AIR 1980 SC 446 this Court also in more or less in
an identical situation laid down that since an application
to the High Court has been made very many years after
the filing of the suit and also quite some years after the
appeal had been filed before the High Court, question of
interfering with the discretion exercised by the High
Court in refusing to receive an additional evidence at that
stage would not arise. The time lag in the matter under
consideration is also enormous, and the additional
evidence sought to be produced was, as a matter of fact,
10 years after the filing of the appeal. Presently, the suit
was instituted in the year 1981, and the decree therein
was passed in 1983. The first appeal was filed before the
High Court in April 1983, but the application for
permission to adduce additional evidence came to be
made only in August 1993. Needless to record that the
Courts shall have to be cautious and must always act with
great circumspection in dealing with the claims for
letting in additional evidence, particularly in the form of
oral evidence at the appellate stage and that too, after a
long lapse of time. In our view, a plain reading of Order
41, Rule 27 would depict that the rejection of the claim for
production of additional evidence after a period of 10
years from the date of filing of the appeal, as noticed
above, cannot be termed to be erroneous or an illegal
exercise of discretion. The three limbs of Rule 27 do not
stand attracted. The learned trial Judge, while dealing
with the matter, has, as a matter of fact, very strongly
commented upon the lapse and failure on the part of the
plaintiffs even to summon the attestors to the Will and in
our view, contextually, the justice of the situation does
not warrant any interference. The attempt, the High
Court ascribed it, to be a stage-managed affair in order
somehow to defeat the claim of the respondents, and
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having had the privilege of perusal of the record, we lend
our concurrence thereto, and the finding of the High
Court cannot be faulted for rejecting the prayer of the
appellant for additional evidence made in the belated
application. In that view of the matter, the first issue is
answered in the negative and thus against the plaintiffs
being the appellant herein.”
36. It was laid down in the North Eastern Railway
Administration. vs. Bhagwan Das, (2008) 8 SCC 511, that the
provisions of Order 41 Rule 27 do not enable an unsuccessful
litigant to patch up the weak parts of his case. It was observed: -
“13. Though the general rule is that ordinarily the
appellate court should not travel outside the record of the
lower court and additional evidence, whether oral or
documentary, is not admitted, but Section 107 CPC,
which carves out an exception to the general rule,
enables an appellate court to take additional evidence or
to require such evidence to be taken subject to such
conditions and limitations as may be prescribed. These
conditions are prescribed under Order 41 Rule 27 CPC.
Nevertheless, the additional evidence can be admitted
only when the circumstances as stipulated in the said
Rule are found to exist. The circumstances under which
additional evidence can be adduced are:
(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have
been admitted [clause (a) of sub-rule (1)], or
(ii) the party seeking to produce additional evidence
establishes that, notwithstanding the exercise of due
diligence, such evidence was not within the
knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the
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decree appealed against was passed [clause (aa),
inserted by Act 104 of 1976], or
(iii) the appellate court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial
cause [clause (b) of sub-rule (1)].
14. It is plain that under clause (b) of sub-rule (1) of Rule
27 Order 41 CPC, with which we are concerned in the
instant case, evidence may be admitted by an appellate
authority if it “requires” to enable it to pronounce
judgment, or for any other substantial cause. The scope
of the Rule, in particular of clause (b), was examined way
back in 1931 by the Privy Council in Parsotim Thakur v. Lal
Mohar Thakur [AIR 1931 PC 143] . While observing that the
provisions of Section 107 as elucidated by Order 41 Rule
27 are clearly not intended to allow the litigant, who has
been unsuccessful in the lower court, to patch up the
weak parts of his case and fill up omissions in the court of
appeal, it was observed as follows : (AIR p. 148)
“… Under clause (1)(b), it is only where the
appellate court ‘requires’ it (i.e. finds it needful)
that additional evidence can be admitted. It may be
required to enable the court to pronounce
judgment, or for any other substantial cause, but in
either case, it must be the court that requires it.
This is the plain grammatical reading of the sub-
clause. The legitimate occasion for the exercise of
this discretion is not whenever before the appeal is
heard a party applies to adduce fresh evidence, but
‘when on examining the evidence as it stands some
inherent lacuna or defect becomes apparent’.”
15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR
1963 SC 1526: (1964) 2 SCR 35] a Constitution Bench of this
Court while reiterating the aforenoted observations in
Parsotim case [AIR 1931 PC 143] pointed out that the
appellate court has the power to allow additional
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evidence not only if it requires such evidence “to enable
it to pronounce judgment” but also for “any other
substantial cause”. There may well be cases where even
though the court finds that it is able to pronounce
judgment on the state of the record as it is, and so, it
cannot strictly say that it requires additional evidence “to
enable it to pronounce judgment”, it still considers that
in the interest of justice something which remains
obscure should be filled up so that it can pronounce its
judgment in a more satisfactory manner. Thus, the
question whether looking into the documents, sought to
be filed as additional evidence, would be necessary to
pronounce judgment in a more satisfactory manner, has
to be considered by the Court at the time of hearing of the
appeal on merits.”
37. Therefore, it is not permissible to take the additional
evidence on record. Hence, the present applications fail, and
they are dismissed.
38. Applications stand disposed of.
Substantial Question of law No.1 and 2:
39. Both these substantial questions of law are
interconnected and are being taken up together for
consideration.
40 . It has been found above that in a suit based upon the
encroachment, it is the obligation of the party claiming the
encroachment to prove by satisfactory evidence that
encroachment has been made, and the Court can suo motu
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appoint a local commissioner in case of a boundary dispute
where the parties are not certain of the boundaries. In the
present case, the defendant had obtained a demarcation, and
therefore, he was certain of the boundary. He had come to the
Court with a specific plea that the plaintiffs had encroached
upon his land. Thus, the learned Courts below cannot be faulted
for not appointing a local commissioner, and there is no
infirmity in the judgments of the learned Courts below in
dismissing the suit for want of proper demarcation. Hence,
these substantial questions of law are answered accordingly.
Final Order :
41. In view of the above, the present appeal fails and is
dismissed.
42. The appeal stands disposed of, so also the pending
application(s), if any.
43. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
nd
22 July, 2026
(Nikita)
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