V.K. AHUJA, J.

(1.) This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/defendant against the judgment and decree of the Court of learned District Judge, Shimla, dated 1.8.2000, vide which he affirmed the judgment and decree passed by the Court of learned sub Judge (3) Shimla, dated 30.7.1998, decreeing the suit of the respondent for permanent prohibitory injunction as against the appellant.

(2.) Briefly stated, the facts of the case that that the respondent hereinafter also referred to as the plaintiff, filed a suit for permanent prohibitory injunction as against the appellant, hereinafter also referred to as the defendant. It was alleged by the plaintiff that a he is owner in possession of one plot of land bearing Khasra No. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 496/6 situated in Station Ward Bara Shimla, which plot was purchased by the plaintiff in the year 1980, on which he raised four storeyed house. It was alleged that the defendant is owner of the adjoining plot of land comprised in Khasra No. 496/2 on which the defendant had also raised a three storeyed building. The defendant after his construction provided an iron railing at the edge of the boundary line of the plot of the defendant adjoining the property of the plaintiff. It was alleged that the said iron railing has been provided by the defendant at the extreme end of the stairs leading to the building of the defendant. It was further alleged that there is about 2 to 3 space between the end of the stairs and the railing of the defendant and the building of the plaintiff which is approximately 48 in length. The said space is owned and possessed by the plaintiff and the plaintiff has provided the down pipes for the drainage of the waste water as well as the sewerage pipes. The plaintiff has also provided catch pit at each floor which has been connected to the main whole of the drainage system of the plaintiff. It was also alleged that the plaintiff has also provided a cement mortar lintel above the said pipes within his own area. The defendant has no right, title or interest on the said space which has been shown in ABCD in the plan annexed with the plaint.

(3.) It was further alleged by the plaintiff that in the year 1982 some dispute arose between the parties to the present suit and the defendant instituted a suit against the plaintiff for permanent prohibitory injunction restraining the defendant (present plaintiff) from interfering in any manner with the stairs or railing of the plaintiff or to provide any window etc. towards the building of the defendant. In that plaint, the present defendant has taken an emphatical stand that the boundary between the respondent and the plaintiff is the extreme edge of the stair case where the defendant has provided iron railing. The portion shown as ABCD in the plan annexed with the plaint was admitted to be that of the plaintiff by the present defendant. It was further alleged that a few days back, the defendant has started interference over the portion of the land comprised in Khasra No. 496/6 owned and possessed by the plaintiff particularly in portion shown as ABCD in the plan annexed with the plaint. The defendant has also threatened to utilize the space marked as ABCD for his exclusive use depriving the plaintiff of his right. The defendant has also caused slight damage to the said slab and threatened to extend the iron railing over the said portion of the plaintiff to which the defendant has no right, title or interest. Hence, the suit for permanent injunction filed by the plaintiff.

(4.) The defendant took up preliminary objections that the plaintiff is not owner of the suit land. On merits, he admitted that he has provided iron railing, but these are not on the edge of the boundary of plot, the same are on the edge of the stairs case provided by the defendant in his building and the land of the defendant is beyond the said iron railing. He also pleaded that he has not done anything in the land of the plaintiff but has made small platforms for keeping flower pots in his land as the waste water pipes and the sewerage pipes of the plaintiff are constant cause of nuisance to the defendant.

(5.) On the pleadings of the parties, the following issues were framed by the learned trial Court:-

1. Whether the defendant is causing interference over the suit land, as alleged? OPP 2. Whether the plaintiff is entitled for the relief, as prayed? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is not properly valued? OPD 5. Relief.

(6.) Parties led their evidence and the learned trial Court vide its impugned judgment decided all the issues in favour of the plaintiff and as against the defendant and decreed the suit for injunction. On appeal, those findings were affirmed by the learned District Judge, Shimla vide his impugned judgment and decree.

(7.) Being aggrieved, the appellant has filed the present appeal.

(8.) I have heard the learned counsel for the parties and have gone through the record of the case.

(9.) It was pointed out by the learned counsel for the appellant that it has not been established that the area shown as ABCD is owned and possessed by the plaintiff/respondent. It was also submitted that the decree in question for permanent injunction and not for removal of the flower pots and no relief of mandatory injunction was granted by the Court and as such, the decree in question is not executable.

(10.) On the other hand, learned counsel for the respondent had supported the impugned judgment for the reasons given therein.

(11.) A perusal of the appeal filed by the appellant shows that the appellant was admitted by this Court on two grounds, firstly whether the suit was barred by the principle of res judicata and secondly, on the ground that no second demarcation qua the said property could have been ordered by the Court during the course of proceedings of the present case. Another ground on which the appeal was admitted was as to whether in the absence of proper identification of the land, the present suit was maintainable and whether the judgment and decree in the earlier case stood satisfied and the suit was not maintainable.

(12.) On appraisal of the record of the case including the arguments raised by the learned counsel for the appellant, it is clear that no issue was framed in regard to the question as to whether the present suit was barred by the principle of res judicata and, therefore, no findings had been recorded by the Courts below as to whether the suit was barred by principle of res judicata since no such specific plea was taken and no such issue was claimed during the trial of the case. In regard to the question as to whether second demarcation report could not have been sought or the land was properly identified. Learned counsel for the appellant was not able to satisfy this Court that these questions arise for decision before this Court for the reasons that the Local Commissioner had been appointed by the Court during the trial of the case to resolve the controversy in between the parties and there was no bar to the appointment of Local Commissioner for identification of the land in question. Moreover, the land in question had been duly identified as ABCD by the plaintiff in the plaint and the report of the Local Commissioner Ext. OW4/A is there determining the question as to what was the identity of the suit land. The Tehsidlar had gone to the spot as Local Commissioner, demarcated both the Khasra Numbers and the report of the Tehsildar was confirmed, which clearly proves that point OH was the boundary of the parties and the Local Commissioner had also opined that the area of Khasra No. 496/6/1 which is 27 Sq. feet, belongs to the plaintiff where the defendant had made space for keeping of the flower pots and lintel parking, which has also been shown as Khasra No. 496/9/1 with blue marks. Thus, the identity of the land as alleged in the plaint stood determined as per the report of the Local Commissioner and the same is shown as Khasra No. 496/6/1 where the space has been made by the defendant for keeping of the flower pots, which is not that the flower pots had been kept there and, therefore, relief of mandatory injunction ought to have been granted by the Court if considered appropriate and as such, the relief for permanent injunction granted restraining the defendant from using the land in any such manner, was granted in accordance with law. The findings of fact recorded by the learned trial Court that the suit land belongs to the plaintiff were affirmed by the learned District Judge and no case is made out for reappraisal of the evidence in this regard. The learned District Judge in its judgment had clearly observed that in the previous instituted

suit, copy of plaint Ext. P-5, shows that the defendant had admitted that he had constructed the stairs on the boundary of the plaintiffs plot and as such, it was held that the space between the railing and the building of the plaintiff was belonging to the present plaintiff. It was clearly held that the stairs and the railing adjoins the plot of the plaintiff/respondent and the iron railing of the stairs put up by the defendant was the boundary line of his property. Therefore, the vacant space in question was found to be belonging to the plaintiff and the land in question stands properly identified by the report of the Local Commissioner relied upon by both the Courts below. Those findings of fact do not require to be reconsidered after reappraisal of the evidence. (13.) In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the same is accordingly dismissed. However, the parties are left to bear their own costs.