IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 15 of 2000. Decided on : 04.01.2011. Sohan Singh and others …Appellants. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants : Mr. O.P.Sharma, Senior Advocate with Mr. K.R.Kashyap, Advocate. For the respondents : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. for respondent No.1. Mr. Romesh Verma, Advocate for respondent No.3. Kuldip Singh , Judge (Oral) The appellants were plaintiffs and they have come in second appeal against judgment, decree dated 12.10.1999 passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 29 of 1998 modifying judgment, decree dated 29.4.1998 passed by learned Sub Judge, 1st Class, Rampur Bushahr in case No. 16-1 of 1996 but upholding the dismissal of suit. 2. The brief facts of the case are that the appellants had filed a suit for declaration and perpetual injunction against respondents regarding the land more specifically described in the 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes 2 plaint. The case of the appellants is that they are owners in possession of the suit land as entered in Misal Hakiyat of Chak Maholi, Sub Tehsil, Nankhari. The further case of the appellants is that their grand father got the nautor out of khasra No. 50, sometime in the year 1933 and possession thereof was handed over to him in the year 1934. The land which was granted to the grand father of the appellants has now been shown by Khasra Nos. 83, 85, 86 and 88. The suit land bearing khasra Nos. 80, 81 and 82 was contiguous to nautor land so granted and their grand father had encroached upon the suit land in November, 1935. 3. It has been pleaded that appellants and their forefathers are coming in continuous, open, exclusive and uninterrupted possession of the suit land since November, 1935 and they have become owners of the suit land by way of adverse possession. It has been alleged that the appellants and their father have planted some apple, Cherry and Pear trees on the suit land. The father of the appellants has also constructed a house on the suit land in the year 1958. In August 1995, the appellants were obstructed from plucking apple crop from the suit land and, therefore, the suit was filed. 4. The respondents No.1 and 2 contested the suit by filing joint written statement in which preliminary objections of necessary party, jurisdiction of the civil court, estoppel, valuation, limitation, lack of cause of action have been taken. On merits, the respondents No.1 and 2 contested the suit of the appellants and prayed for dismissal of the suit. The possession of the appellants on the suit land was denied. According to respondents No.1 and 2, the suit land was encroached by the father of the appellants in the year, 1965. 3 The ejectment proceedings were initiated against him and he was ejected from the suit land under Section 163 of the H.P.Land Revenue Act vide rapat No. 126 dated 24.12.1968. The suit land was handed over to the Gram Panchayat, Bagalthee. The father of the appellants was President of the Gram Panchayat, Bagalthee and appellant No.1 was the Secretary of the Panchayat. They mis- appropriated the income of the suit land by mis-using their official capacity. 5. In the year 1995 the High Court intervened and ordered for the sale of apple crop of the suit land and to deposit the sale proceeds in the fixed deposit. The construction of house on the suit land by the father of the appellants in the year 1958 was denied. It is their stand that Gram Panchayat, Bagalthee is coming in possession of the suit land since 1968. The appellants again encroached the suit land in the year 1980 but they were again ejected from it on 8.2.1980. The respondents No.1 and 2 denied the claim of adverse possession of the appellants on the suit land. 6. The respondent No.3 has filed separate written statement and he has taken more or less the same pleas as have been taken by respondents No.1 and 2. The appellants filed replication and controverted the stand of the respondents and reiterated their case set up in the plaint. 7. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs have become owner of the suit land by way of adverse possession? OPP 4 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the civil court has got no jurisdiction to try the present suit? OPD 4. Whether the plaintiffs are estopped by his act and conduct to file the present suit? OPD 5. Whether the plaintiffs have got no cause of action to file the present suit? OPD 6. Whether the suit has not been properly valued for the purpose of jurisdiction and court fees, if so, what is correct valuation of suit property? OPD 7. Whether the suit is time barred? OPD 8. Whether the suit is bad for want of notice u/s 80 CPC? OPD-3. 9. Relief. The issues No. 1, 2, 6 and 8 were answered in negative whereas other issues were answered in affirmative and the suit was dismissed by the learned Sub Judge on 29.4.1998. In appeal, the learned District Judge on 12.10.1999 reversed the findings of the learned Sub Judge on jurisdiction and held that civil court has jurisdiction to try the suit but affirmed the findings of the learned Sub Judge on other issues and dismissed the appeal. 8. The appellants have come in second appeal against judgment, decree dated 12.10.1999 which has been admitted on the following substantial questions of law:- 1. Whether the Courts below has misread and mis-construed the documentary evidence in the present case as well as the oral evidence particularly when the name of the appellants are continuously coming in jamabandi, in the column of possession since 1956-57. 2. Whether any person can be evicted from land without making a tatima and specifying khasra number and other necessary 5 particulars as specified in CPC for identification of land. The land in dispute is a combination of khasra Nos. 75, 76, 80, 81 and 82 and is not demarcated. 9. I have heard the learned counsel for the parties and have also gone through the record. Mr. O.P.Sharma, Senior Advocate, learned counsel for the appellants has submitted that the two courts below have misread and mis-construed the documentary evidence as well as oral evidence and have erred in dismissing the suit of the appellants. He has also submitted that the suit land is part of undemarcated land and, therefore, there is no question of eviction of appellants under Section 163 of the H.P.Land Revenue Act from such land. He has prayed for acceptance of the appeal. The learned Additional Advocate General and Mr. Romesh Verma, Advocate representing respondent No.3 have supported the impugned judgment, decree and prayed for dismissal of the appeal. 10. The substantial question of law No.2 is taken first. In the plaint in prayer, the appellants have sought declaration that they have become owners in possession of land comprised in Khasra Nos. 80, 81 and 82 measuring 0-32-18 as per Misal Hakiyat, Chak Maholi, Sub Tehsil, Nankhari and defendants be restrained from interfering in their possession. The appellants themselves have completely identified the suit land in the prayer clause of the plaint. It is a different matter that the appellants could not establish their case before the two courts below. The learned counsel for the appellants has submitted that the stand of the respondents that the appellants were evicted under Section 163 of the H.P.Land Revenue Act from the land in dispute is not correct inasmuch as the land is part of undemarcated area. 6 There is no merit in this contention inasmuch as the appellants themselves have identified the suit land in the plaint and in these circumstances, there is no question that the land is part of undemarcated area. In these circumstances, the substantial question of law No.2 is decided against the appellants. 11. It has been contended on behalf of the appellants that they are coming in possession of the suit land through their forefathers since November, 1935. The house has also been constructed on the suit land in the year 1958. This stand of the appellants has been denied by the respondents. It has been pointed out on behalf of the appellants that in Parcha Khatauni Ex.PW-1/D the names of appellants Dharam Sain and Harpaul Singh have been recorded. It has been submitted by the learned counsel for the appellants that this Parcha Khatauni Ex.PW-1/D was prepared at the time of settlement in the year 1980. 12. The appellants are claiming possession of the suit land since November, 1935. The stray entry of Parcha Khatauni Ex.PW-1/D is of no help to the appellants unless and until it is shown how the names of the appellants were entered in Parcha Khatauni Ex.PW-1/D. No presumption of truth is attached to Ex.PW-1/D. In Ex.PW-1/F Misal Hakiyat suit land is shown in ownership of State and in possession of Panchayat. The presumption of truth is attached to Misal Hakiyat Ex.PW-1/F. No revenue record showing the possession of the appellants on the suit land from the year 1935 has been shown nor there is any entry that the appellants have constructed the house on the suit land in the year 1958. The two courts below have considered the entire material on record and have 7 recorded a concurrent finding of fact that the appellants are not in possession of the suit land. It is not the case of the appellants that inadmissible evidence has been considered and material evidence which goes to the root of the case has not been considered by the two courts below. The impugned judgments, decrees are not perverse. The view taken by the learned District Judge emerges from the evidence on record. In second appeal, re-appreciation of evidence is not permissible. There is no merit in the appeal. The substantial question of law No.1 is decided against the appellants. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed. ( Kuldip Singh ) Judge. January 4, 2011. (GR)