HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 36 of 2000 Decided on: 18.8.2010 Naresh Kumar and another ………Appellants. Versus Shamsher Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Arvind Sharma, Advocate. For the respondents: Mr.N.K. Thakur, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant/plaintiffs under Section 100 of the CPC against the judgment and decree, dated 30.6.1999, passed by the learned District Judge, Una, H.P., vide which he affirmed the findings of the learned Sub Judge, Court No.II, Una H.P., dated 28.4.1993, whereby the suit of the appellant/plaintiffs for declaration was dismissed. 2. Briefly stated the facts of the case are that the appellants as plaintiffs filed a suit for declaration that the plaintiffs are owners in possession of the land measuring 13 kanal & 9 marlas, comprised in Khasra Nos.54, 55, 56, 56, 57/1 and 456, situated in village Heru. It was alleged that the entries showing predecessors-in- interest of the defendants in possession as tenant over the suit land are wrong, null and void having no binding effect _____________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - on the right, title or interest of the plaintiffs. The plaintiffs also challenged the orders passed by the Assistant Collector, 2nd Grade, dated 31.1.1985, vide which he changed the entries in favour of the predecessors-in- interest of the defendants. The said order was challenged being without jurisdiction, null and void and not binding upon the rights of the plaintiffs. The plaintiffs also prayed for the relief of permanent injunction in their favour and as against the defendants. 3. Defendants contested the suit. They took up the plea that they are in possession of the suit land as tenant on payment of rent for the last 30 years. It was alleged that when they came to know about the entries existing in the name of owners, an application for correction was moved before the Revenue Officer, Bangana, who, after due inquiry, found the defendants in possession and ordered the possession to be recorded in their favour. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP 2. Whether the revenue entries contrary to plaintiff’s interest are illegal, null and void, as alleged? OPP 3. Whether the plaintiffs have no locus-standi to file the suit? OPD 4. Relief. 5. The parties led their evidence and the learned trial Court, vide its impugned judgment, decided all the issues as against the plaintiffs and in favour of - 3 - the defendants and consequently, dismissed the suit. On appeal, those findings were affirmed by the learned District Judge. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appeal was admitted by this Court on two substantial questions of law. However, on appraisal of the judgment passed by the learned trial Court, it is clear that it had observed that General Power of Attorney of the plaintiffs, namely, Daljit Singh had appeared in the witness box as PW-1 and had produced photo copy of the General Power of Attorney. It was also observed by the learned trial Court that in his deposition, PW-1 Daljit Singh stated that he has been coming in possession of the suit land for the last 25-26 years and prior to that, the suit land was in possession of the owners. He also stated that he was paying money to the land owners. Thus, it is clear that the case set up by the General Power of Attorney was in contradiction to the pleadings of the plaintiffs, who claimed themselves to be in possession of the suit land as owners. No other witness was examined by the plaintiffs. No evidence had been led by the plaintiffs to prove that the order passed by the Assistant Collector, 2nd Grade, was null and void. Accordingly, the learned trial Court came to the conclusion that the revenue entries in favour of the defendants have not been rebutted by any cogent and reliable evidence led by the plaintiffs. - 4 - 8. The learned First Appellate Court had come to the conclusion that the suit ought to have been filed for possession of the land since the plaintiffs were out of possession. It was also observed that no appeal against the order passed by the Assistant Collector, 2nd Grade, was filed or proved on record. No witness from the village had been examined to prove the possession of the plaintiffs over the land in dispute and accordingly, the learned trial Court came to the conclusion that the plaintiffs had failed to prove their possession over the suit land, as such those findings were affirmed by the learned First Appellate Court. 9. Keeping in view the above discussion, it is clear that no substantial question of law arises from the appeal since the plaintiffs had failed to prove their case. The substantial questions of law formulated by the Court have not been substantiated by the plaintiffs by their evidence and as such no case is made out for reappraisal of the evidence by this Court. Therefore, the findings recorded by the learned First Appellate Court do not call for an interference by this Court and as such they are upheld. 10. In view of the above discussion, the appeal filed by the appellants is liable to be dismissed and the same is dismissed accordingly. However, the parties are left to bear their own costs. August 18, 2010. (V.K. Ahuja), (TILAK) Judge.