Yoginder Lal Sharma Vs Subhashni Mahajan deleted, Sushma Mahajan and Anr.

2026:HHC:30103

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

¶5

Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes.

¶6

For the Appellants : Mr R.K. Bawa, Senior Advocate, with Mr Abhinav Thakur, Advocate.

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For respondents No.2 and 4 : Mr Y.P. Sood, Advocate. The names of respondents No. 1 and 3 have been deleted.

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Rakesh Kainthla, Judge

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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

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passed by the learned Sub Judge, Court No. 1, Shimla (learned

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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).

¶15

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.

¶16

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.

¶20

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.

¶21

A replication denying the contents of the written statement and affirming those of the plaint was filed.

¶22

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.

¶26

The following issues were framed by the learned Trial Court on 08.08.2001:

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Whether the plaintiff is entitled for the relief of a permanent prohibitory injunction, as prayed? OPP

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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

¶29

Relief.

¶30

The parties were called upon to produce the evidence, and plaintiff No.1 examined herself. The defendant examined himself (DW1), and Inder Singh (DW2).

¶31

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.

¶35

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.

¶39

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:

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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?

¶41

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?

¶42

I have heard Mr R.K. Bawa, learned Senior Counsel,

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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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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.

¶50

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.

¶51

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

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 crossexamination 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.

¶56

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:

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“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.

¶61

Similar is the judgment of the Hon'ble Supreme

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Court in State of H.P. v. Mangat Ram, 1995 Supp (1) SCC 229, wherein it was held at page 232:

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“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.

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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”.

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This position was reiterated in Jeet Lal vs. Sita Ram

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2002 H.L.J. 1173 , wherein it was held:

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“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 Assistant Collector, 2^nd 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 Assistant Collector 2^nd 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.”

¶71

Similarly, it was held by this Court in Shashi Pal vs.

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Kuldeep 2018(2) Himachal Law Reporter 1135 that a fresh

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demarcation cannot be ordered without setting aside the previous demarcation. It was observed:

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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 petitionerplaintiff 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.

¶78

A similar view was taken in Jeet Ram versus Sita Ram

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2002 HLJ 1173, wherein it was observed:

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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.

¶84

Therefore, it is impermissible to carry out a fresh

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demarcation without setting aside the earlier demarcation conducted by the competent authority.

¶86

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.

¶87

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.

¶91

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: -

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“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.”

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This position was reiterated in Jeet Ram versus Sita

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Ram 2002 HLJ 1173, and it was observed: -

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“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.”

¶99

Similarly, it was held in Naseeb Deen and another

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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:

¶101

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.

¶105

This position was reiterated in Ram Nath versus

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Kuldeep Singh, CMPMO No. 272 of 2019, decided on 25.6.2019,

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wherein it was observed:

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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.

¶112

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.

¶113

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.

¶114

In the present case, the applicant/defendant has

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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.

¶119

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.

¶120

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.

¶121

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

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These applications have been filed for additional

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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.

¶127

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 per the law² . 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.

¶131

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.

¶132

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

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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:

¶137

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:

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". . . . . . . . . . . . . . . . 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".

¶142

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.”

¶146

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: -

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“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:

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(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

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(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

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(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)].

¶154

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)

¶155

“… 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 subclause. 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’.”

¶156

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

¶157

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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.”

¶160

Therefore, it is not permissible to take the additional

¶161

evidence on record. Hence, the present applications fail, and they are dismissed.

¶162

38. Applications stand disposed of.

¶163

Substantial Question of law No.1 and 2:

¶164

Both these substantial questions of law are interconnected and are being taken up together for consideration.

¶165

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

¶166

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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.

¶169

Final Order :

¶170