IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.232 of 2000 Date of decision : March 29, 2010 Gurdev and others …Appellants. Versus Mangal (Dead) through LRs …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Bimal Gupta, Advocate. For the Respondent : Mr. N.K. Thakur, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal was admitted on the following substantial question of law, vide order dated 25th August, 2000: “Whether the suit as framed was competent and was within the jurisdiction of the Civil Court?” 2. Plaintiff-respondent filed a suit for declaration that he was owner in possession of land measuring 8 Kanals 19 Marlas, situate in village Jakhera, Tehsil & District Una and that change in the entries in Khasra Girdawari for Kharif 1976, showing defendant-appellant in possession, was illegal, wrong and of no consequence upon his rights. It was stated that earlier the plaintiff-respondent was in possession of the land, as a tenant, as per entries in Whether reporters of the local papers may be allowed to see the judgment? …2… Jamabandi for year 1973-74 (Ex.P-4), but the defendant- appellant, in connivance with the revenue officials, got the entries changed in 1976 and on the basis of the said change, which was made in the Khasra Girdawari, got his name incorporated in the subsequent Jamabandi. He pleaded that the entries in the subsequent Jamabandis as also in Khasra Girdawari for 1976 were illegal and did not affect his right. 3. Suit was contested by the defendant-appellant. It was stated that earlier the suit property belonged to the custodian of the Evacuee Properties, who allotted the same to Shiv Ram and said Shiv Ram entered into an agreement with the defendant, for the sale of the said property and received a sum of Rs.5,000/-. He further pleaded that even before agreement to sell in his favour by Shiv Ram, the defendant had been in possession of the suit property for about 19 years and, therefore, he had become owner by way of adverse possession, being in open, hostile and uninterrupted possession. 4. Trial Court framed the following issues, on the pleadings of the parties: “1. Whether the plaintiff had been in possession of the suit land as a tenant and has now become owner thereof as alleged? OPP 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the suit is not maintainable? OPD …3… 4. Whether the plaintiff has no locus standee to file the suit? OPD 5. Whether the defendants have become owner of the suit land by way of adverse possession? OPD 6. Relief. 5. Trial Court, at the end of the trial, concluded that the plaintiff-respondent was in possession of the suit land as tenant. Issues, based on the objections of the defendant-appellant were found against him. Consequently, the suit was decreed and a decree of permanent prohibitory injunction was passed in favour of the plaintiff-respondent and against the defendant- appellant, restraining him from interfering with the possession of the plaintiff-respondent. Defendant-appellant went in appeal to the Court of District Judge. Appeal stands dismissed. 6. As a matter of fact, no objection with regard to the jurisdiction of the Civil Court had been raised and as such the substantial question of law, on which the appeal was admitted, cannot be said to have been correctly formulated. The same is reformulated as follows: Whether the suit was not maintainable in the form in which it had been made? 7. I have heard the learned counsel for the parties and gone through the record. 8. Earlier the suit property was entered in the ownership of the Central Government, but in possession of …4… mortgagees, named Mehar Chand and Parma Nand. A change appeared in favour of the plaintiff-respondent in Rabi 1967, when he was entered in possession as tenant, under the abovenamed mortgagees. This entry continued in favour of the plaintiff-respondent till the year 1976, when the change was effected in favour of the defendant- appellant, showing him and one of the mortgagees in possession of the suit property, in equal shares. There is no corresponding entry in the Rojnamcha, serving as the basis of the said entry and, therefore, the said entry can be said to be without any basis. 9. In any case, when there is nothing on record, showing that the mortgagees had got the possession back from the tenant, i.e. the plaintiff-respondent, the defendant-appellant could not have got into possession. Merely for the reason that he entered into some agreement with the allottee of the land, i.e. Shiv Ram, who after allotment was recorded as mortgagor, the defendant cannot be said to have acquired possession. Plea of the defendant- appellant that he had been in possession of the suit land for 19 years is not borne out from the entries in the revenue papers. Defendant-appellant did not examine Shiv Ram to whom the land was allotted as mortgagor. Writing regarding agreement to sell was also not produced by the defendant-appellant. …5… 10. Suit of the plaintiff-respondent was for declaration that the entries showing the defendant- appellant in possession were wrong, illegal and had been made without any basis and also for permanent prohibitory injunction, restraining the defendant-appellant from interfering in his possession. Such a suit cannot be said to be not maintainable, in view of the abovestated facts and the circumstances. Consequently, the substantial question of law is answered against the defendant-appellant and the appeal is dismissed. Appeal stands disposed of accordingly. March 29, 2010(sd) ( Surjit Singh ), J