IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 346 of 1996 Judgment reserved on 17.3.2011 Decided on: 7th April, 2011 Jalam Singh and another ……..Appellants Versus Bhagwan Singh (deceased through LRs) and another ……Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the respondents : Mr. Neeraj Gupta, Advocate, for respondents No. 1 (a) and 2. Mr. Devender Sharma, Advocate, Court Guardian, for respondents No. 1 ©, 1 (d) and 1 (e). ____________________________________________________ SURINDER SINGH, J Plaintiffs failed in both the courts below as such filed the present regular second appeal which was admitted on the following substantial questions of law:- 1. Whether there has been mis-reading and mis-appreciation of pleadings of the parties as well as the evidence on record? 2. Whether the courts below acted illegally by failure to consider the admissions of respondents in their oral and documentary evidence which leads to the conclusion that the Whether reporters of the Local papers are allowed to see the judgment? yes - 2 - appellants are owners in possession of area of khasra No. 125? 3. Whether the area of old khasra No. 2122/2, measuring 18 biswas has been converted into new khasra No. 125 during current settlement and on this account the courts below have ignored oral and documentary evidence? 4. Whether the appellants are entitled to a decree of injunction. 5. Whether the respondents cannot be allowed to violate the compromise and decree exhibit DW-1/D? 6. Whether due to mis-appreciation of perverse entries on record and due to non-consideration of earlier judgment by the civil court, the findings are vitiated? 2. The appellants, herein to be referred to as the ‘plaintiffs’ filed a suit for declaration against the defendants/respondents to the effect that they are owners in possession of suit land, i.e., khasra No. 125 measuring 0-06-39 situated in up-mohal Sudharang Tehsil Kalpa District Kinnaur, H.P. with a consequential relief of injunction. The contention of the plaintiffs has been that they are owners of khasra Nos. 121 to 124 located adjacent to the suit land. According to them, before the settlement suit land was a part and parcel of khasra No. 1176. It was assigned khasra Nos. 121 and 124 after the settlement. These khasra numbers were abutting to erstwhile khasra No. 2122/1 belonging to defendant No. 1, which he got as nautor but the land denoted by khasra No. 121 to 124 has been their own inherited property. Further that during - 3 - settlement, plaintiffs were found in possession of the suit land but the revenue officials entered the plaintiffs in possession of the suit land under defendant No. 1 in the column of possession. Their request to record them as owners in possession turned deaf-ears to the revenue officials. But in turn wife of defendant No. 1, i.e., defendant No. 2 was entered into its possession. Later, the plaintiffs sought amendment in para 5 of the plaint which was allowed, whereby they asserted their adverse possession over the suit land. 3. The defendants offered strong resistance to the claim of the plaintiffs and filed their written statements questioning the maintainability of the suit, pleading resjudicata, valuation and estoppel by way of preliminary objections and on merits admitted the plaintiffs to be owners of khasra Nos. 121 to 124 but denied that suit land bearing khasra No. 125 is owned and possessed by them and not by plaintiffs as alleged. They also denied that the suit land was a part of khasra No. 1176 (old) but averred that in civil suit No. 45 /1 of 1984 the defendants had left 18 biswas of land to the plaintiffs out of khasra No. 2122 (old) which was denoted by khasra No. 2122/1 but during the settlement, this land was included in khasra No. 124 owned and possessed by the plaintiffs. Thus, - 4 - the defendants denied any right, title or interest of the plaintiffs on the suit land and also the adverse possession, as alleged, prayed for dismissal of the suit. 4. In replication, preliminary objections were denied by the plaintiffs and even paras of the plaint were reasserted. 5. On the pleadings of the parties following issues were framed by the learned trial Court:- (i) Whether the land denoted by khasra No. 125 is in the ownership and possession of the plaintiffs and the revenue record in this behalf is wrong? OPP (ii) Whether the plaintiffs in the alternative have become owners of the suit land by way of adverse possession? OPP (iii) Whether the defendants are estopped by their act, conduct and acquiescence to challenge the plaintiffs suit? OPP (iv) Whether khasra No. 125 was found in the ownership and possession of the plaintiffs by Tehsildar Settlement, as alleged? OPP (v) Whether the plaintiff’s suit is hit by the principle of resjudicata? OPD. (vi) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, what is the correct value? OPD. (vii) Whether the plaintiffs are estopped by their act and conduct, as alleged? OPD. (viii) Whether 18 biswas of land was carved out of old khasra No. 2122/1 now denoted by - 5 - khasra No. 124 belonging to the plaintiffs? OPD. (ix) Relief. 6. The learned trial Court, after complete trial decided all the issues against the plaintiffs as such dismissed their suit precisely on the ground that the plaintiffs failed to prove the ownership and possession of the suit land as also the adverse possession, and further that 18 biswas of land alleged to have been left by the defendants in favour of the plaintiffs could not be connected with the suit land. The plaintiffs challenged the judgment and decree passed by the learned trial Court in appeal before the first Appellate Court. During the pendency of this appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was preferred by the plaintiffs for placing on record akash tatima of the suit land, which was dismissed along with the appeal, while appreciating the rival contentions, the learned first appellate Court observed that the said document, i.e., akas tatima is also not going to help the plaintiffs’ case in any manner, as the plaintiffs case has been that they were in possession of the suit land, which was carved out from khasra No. 1176 whereas during the evidence they stated that it was a part of khasra - 6 - No. 2122 which was in deviation to their pleadings. The appeal was also dismissed as the plaintiffs failed to connect the suit land, either as a part of khasra No. 2122/1 alleged to have been left in favour of the plaintiffs. 7. Shri G.D. Verma, learned Senior Advocate duly assisted by Shri B.C. Verma, Advocate vehemently argued that the courts below did not appreciate the evidence on record in the right perspective and further that it conveniently ignored the compromise decree Ext. DW-1/D and further that there is overwhelming evidence on record to show that khasra No. 2122/1 measuring 18 biswas has been converted into khasra No. 125 during the current settlement. He further argued that in order to obviate any discrepancy, the (application CMP No. 609 of 1996) under Order 41 Rule 27 of the Code of Civil Procedure has been moved in the present appeal to place on record the missal haquiat bandobast jadeed to connect the suit land showing it a part of khasra No. 2122 . He further argued that even if the plaintiffs failed to prove their title on the suit land, their possession stands proved therefore, at least a decree for injunction should have been granted in their favour. - 7 - 8. Shri Neeraj Gupta, learned counsel for the defendants supported the impugned judgments and decrees passed by the courts below. He further submitted that the plaintiffs could not connect the suit land with the decree Ext. DW1/E which was already left by the defendants in favour of the plaintiffs. He also argued that the plaintiffs specifically claimed that the suit land was part and parcel of khasra No. 1176 and at the time of recording evidence, they took a turn different from their pleadings that it was a part of khasra No. 2122, being covered under the judgment Ext. DW1/D. He also ventilated that the learned trial Court meticulously examined the evidence on record, so also the first appellate Court. Since there are concurrent findings of facts and no law point much less a substantial question of law is involved, , the appeal deserves to be dismissed. He also argued that no fruitful purpose will be served even by allowing the application under Order 41 Rule 27 of the Code of Civil Procedure by placing on record missal haquiat bandobast jadeed as the stand taken by the plaintiffs is contrary to the pleadings. Thus no substantial cause is going to be served. - 8 - 9. I have given my thoughtful consideration to the rival contention of the parties and have carefully and thoroughly examined the record. 10. Initially, the plaintiffs claimed themselves to be the owners in possession of the suit land as a part of the land inherited by them that prior to the settlement, the suit land was a part of khasra No. 1176 and after the settlement from this khasra number, two khasra numbers were carved-out. One is khasra No. 124 and another is the suit land alternatively by seeking amendment pleaded adverse possession. Plaintiff as PW1 made his effort to substantiate his case but with the same breath contradicted his stand taken initially in the plaint and tried to assert that that during the demarcation khasra No. 2122/1/1 was found in their possession. It was assigned khasra No. 125 after the settlement, thus land was left by the defendants in their favour in the earlier civil suit on the basis of compromise and also took up the stand that they have been in its possession for the last 50 years perfecting its title by adverse possession, meaning thereby the plaintiffs are in at most confusion about their claim whether the suit land was a part of old khasra Nos. 1176 or 2122/1. The plaintiffs on record - 9 - could also not substantiate even remotely that their possession over the suit land was nec vi nec precario. Therefore, the plea of adverse possession also fails and rightly rejected by the Courts below. 11. Further, the plaintiffs have also relied upon the demarcation report Ext. PW6/A of PW6 Shri B.R. Negi. and its tatima Ext.PW6/B, to substantiate the point that they were found in possession over khasra No. 1176. But there is nothing on record to link that the suit land, i.e, khasra No. 125 was carved out either from khasra No. 1176 or khasra No. 2122. 12. True it is that in the earlier civil suit, filed in the year 1984 with respect to khasra No. 2122 a portion thereof depicted as 2122/1/1 measuring 18 biswas was found in their possession. It was left by the defendants in favour of the plaintiffs but the plaintiffs have miserably failed to prove that khasra No. 2122/1/1 was assigned khasra No. 125 during settlement. In so far as khasra No. 124 is concerned, defendants did not claim either their ownership or its possession. The demarcation report of PW6 in no way connects the suit land with khasra No. 1176 having been demarcated by him. Even if for the arguments sake, if aks tatima with respect to khasra No. 125 is allowed to be produced on record, as - 10 - sought by application under Order 41 Rule 27 of the Code of Civil Procedure before the first Appellate Court, it would, in no way, prove the case of the plaintiffs as their positive case as pleaded in the plaint has been that the suit khasra, bearing khasra No. 125 was carved out from khasra No. 1176. Thus aks tatima is contrary to their pleadings. Therefore, the application for additional evidence was rightly dismissed by the learned first appellate Court. Similarly missal haquiat sought to be produced by moving the application under Order 41 Rule 27 of the Code of Civil Procedure now in this second appeal is contrary to pleadings hence dismissed. 13. For the foregoing reasons, I do not find misreading and mis-appreciation of the pleadings by the courts below. Since the plaintiffs have failed to prove their possession over the suit land, therefore, the decree either for declaration or for injunction was rightly declined. The compromise and the decree Ext. DW1/D is not connected at all with the suit land therefore, the said judgment and decree has no bearing on the suit land. 14. No other point urged or pressed. - 11 - 15. The substantial questions of law are accordingly answered. The appeal sans merit and is accordingly dismissed as also CMP No.609 of 1996. The parties to be bear their own costs. April 7, 2011. (Surinder Singh), (cm) Judge.