Fresh Demarcation Cannot Be Ordered in Encroachment Suits Without Setting Aside the Previous Statutory Demarcation Report

The plaintiffs (Respondents) filed a suit for a permanent prohibitory injunction against the defendant (Appellant), alleging interference with their ownership of land purchased in 1974.

The defendant filed a counterclaim seeking a mandatory injunction for the removal of an alleged encroachment by the plaintiffs.

During the trial, the defendant admitted to obtaining prior demarcations where no encroachment was detected, though he claimed encroachment occurred subsequently.

The Trial Court decreed the plaintiffs' suit and dismissed the counterclaim.

The Appellate Court set aside the injunction in favor of the plaintiffs due to lack of evidence but upheld the dismissal of the defendant's counterclaim.

The defendant appealed to the High Court, asserting that the lower courts should have suo motu appointed a Local Commissioner to demarcate the land.

1. Whether the learned Courts below were required suo motu to appoint a Local Commissioner to demarcate the land in dispute to decide the controversy regarding encroachment.

2. Whether the learned Courts below had the jurisdiction to appoint a Local Commissioner suo motu if necessary to elucidate the factum of alleged encroachment.

Section 107 of the Himachal Pradesh Land Revenue Act empowers Revenue Officers to define boundaries, and such reports are final unless set aside by competent authority.

As established in Radha Swami Satsang Beas v. State of H.P. and State of H.P. v. Mangat Ram, a fresh demarcation cannot be ordered without setting aside a previous one.

Under Order XXVI, Rule 9 of the CPC, a Local Commissioner is appointed at the Court's discretion to "elucidate" matters, but this power cannot be used to "create evidence" for a party who has failed to prove encroachment through standard means, as per Diwakar Dutt v. Ranjit Singh and Jeet Ram v. Sita Ram.

Order XLI, Rule 27 of the CPC and the principles from N. Kamalam v. Ayyasamy restrict additional evidence to cases of "substantial cause" rather than patching up lacunae.

The Court found that the defendant had already obtained multiple demarcations (e.g., Ext.DX) prior to the suit, none of which showed encroachment.

Under the H.P. Land Revenue Act, these reports are statutory and final; therefore, the Court cannot ignore them or order a fresh demarcation suo motu without the previous ones being legally set aside.

The Appellant’s argument for a suo motu appointment of a Local Commissioner was rejected because the burden of proof for encroachment lies strictly on the claimant.

The Court distinguished between a "boundary dispute" (where boundaries are unknown) and a "claim of encroachment" (where boundaries are known but a violation is alleged); in the latter, the Court will not assist a party in gathering evidence it failed to produce during the trial.

The applications for additional evidence and a new Commissioner at the second appeal stage were rejected as they were deemed attempts to fill gaps in the original case after an unsuccessful result in the lower courts.

The Court dismissed the applications for the appointment of a Local Commissioner (CMP 1006/2006) and for additional evidence (CMP 1007/2006 and 454/2007) and the main appeal was dismissed, and the dismissal of the defendant's counterclaim was upheld.