DINESH MAHESHWARI.J. - (1.) This appeal by special leave is directed against the judgment and decree dated 06.11.2007 in RSA No. 260 of 1995 whereby, the High Court of Himachal Pradesh set aside the judgment and decree dated 06.06.1995 passed by the District Judge, Bilaspur in Civil Appeal No. 154 of 1988 and consequently, dismissed the suit (No. 23/1 of 1986) filed by the plaintiffs-appellants for prohibitory injunction and in the alternative, for recovery of possession of the land in dispute.
(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?;