IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 156 of 1995 Date of Decision: 4th April, 2008 Surinder and others Appellants Versus Smt. Satya Devi and another Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.Bimal Gupta, Advocate. For the respondents: Mr.Bhupender Gupta, Senior Advocate, with Mr.Janesh Gupta, Advocate. Sanjay Karol, J. (Oral) Original respondent No.1 Smt. Kesri Devi (now name has been deleted) and respondents No. 2 and 3 as plaintiffs, filed a suit for permanent injunction against Sh. Jeetu (original defendant), predecessor-in- interest of present appellants. In the suit, it was averred that the land comprised in Khata No. 219, Khatauni Nos. 434, 435 and 436, Khasra Nos. 804, 805, 806, 807, 808, 802 and 803, Kita 7, measuring 0-10-18 hectares, situate in Mohal Gabli Dar, Mauza Khaniyara, Tehsil and District Kangra, as per Jamabandi for the year 1983-84 is jointly owned and possessed by the plaintiffs, defendant and one Smt. Jagtamba Devi, in which plaintiffs have 4/16th share. Since the defendant started changing the nature of the suit land by Whether the reporters of Local Papers are allowed to see the Judgment? 2 cutting small trees, hedges and raising construction thereupon, the suit was filed. The defendant resisted the suit on the ground that the plaintiffs were owner in possession of Khasra No. 802 only and not the entire suit land. The defendant averred that Sh. Beli Ram, predecessor-in- interest of the plaintiffs purchased only 4 Marlas of land out of Khasra No. 282 vide Mutation No. 201 dated 29.6.1929, which was subsequently denoted Khasra No.282/1, out of which new Khasra No. 802 was carved out. Based on the pleadings of the parties, the trial Court framed following issues:- 1. Whether the plaintiffs are owners in possession of four shares out of 16 shares in the land in dispute? OPP 2. Whether the plaintiffs are entitled to permanent injunction, prayed for? OPP 3. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD 4. Whether the suit is bad for non joinder of necessary parties? If so, what are the necessary parties and to what effect? OPD 5. Relief. Relying upon the copies of revenue record (Ext.D-1), which is also proved by the plaintiffs as Ext.P-1 and Ext.D-2 to D-7, the trial Court upheld the defendant’s contention and held that the plaintiffs were owners in possession of only 4 Marlas of land and consequently the suit was dismissed. However, while dismissing the suit, the Court observed that the trees and hedges actually cut by the defendant were not from Khasra No. 802, which was in exclusive possession of the plaintiffs. The trial Court also held that as per copy of Mutation No. 201 (Ext.D-7) dated 29.6.1929 Smt. Narayani, predecessor-in-interest of defendant had sold 4 Marlas of land to Shri Beli 3 Ram, predecessor-in-interest of the plaintiffs, which fact also stood reflected in Jamabandi for the year 1931-32 (Ext.D-5) and also Jamabandi for the year 1968-69 (Ext.D-3). Prior to this, Beli Ram had no right, title and interest in the joint Khatta, which was evident from revenue record (Jamabandi for the year 1919-20) (Ext.D-6). However due to apparent mistake, instead of recording the plaintiffs to be owners in possession with regard to new carved out Khasra No. 802 in the settlement proceedings, the names of the plaintiffs were wrongly recorded as joint owners in possession to the extent of 4/16th share in the entire Khatta as per Ext.D-2. This position continued to be reflected in the subsequent Jamabandi for the year 1983-84 (Ext.P-1/Ext.D-1). The said judgment and decree dated 24.10.1991, passed by Senior Sub Judge, Kangra District at Dharamshala, in Civil Suit No. 23/1987 was assailed by the plaintiffs before the District Judge, Dharamshala, which was registered as Civil Appeal No. 83-XIII/D/94 (91). Alongwith the appeal, the plaintiffs also moved an application under Order 41 Rule 27, CPC seeking to place on record copies of missing link of revenue record Mutation No. 327 dated 24.9.1934 whereby 11 Marlas of more land was also purchased by the predecessor-in-interest of the plaintiffs besides the earlier purchase of 4 Marlas in the year 1929. This fact stood recorded in the revenue record (Jamabandi for the year 1943-44 and Misal Haquiat 1975-76). The application was allowed by the Court in terms of its order dated 31.10.1994 subject to payment of Rs.200/- as costs and the revenue record tendered in evidence were taken on record and marked as Ext.P-4 to Ext.P-7. 4 Eventually, the appeal was heard and the first Appellate Court after relying upon the documents in its entirety decreed the suit holding that the plaintiffs were co-owners to the extent of 4/16th shares in the suit land and also in possession of the same. The plaintiffs’ suit was consequently decreed in terms of judgment and decree dated31.12.1994 passed by Addl. District Judge (2), Kangra at Dharamshala, H.P. , which is now subject matter of challenge in the present appeal. The appeal was admitted on the following substantial questions of law:- “1. Whether learned lower appellate Court was justified in allowing application under Order 41 Rule 27, CPC even though the respondents 1 to 3 had miserably failed to bring their application within the purview of Order 41 Rule 27, CPC? 2. Whether plaintiffs are entitled to decree of injunction on mere asking and learned lower Appellate Court has erred in decreeing permanent injunction suit without recording finding of interference or threat of interference by appellants, proforma respondent-4 and their predecessor?” Learned counsel for the appellants has argued that keeping in view the principles of law laid down by the Apex court in Arjan Singh v. Kartar Singh & others, AIR 1951 SC 193, Natha Singh and others v. The Financial Commissioner, Taxation, Punjab and others, AIR 1976 SC 1053, State of U.P. vs. Manbodhan Lal Srivastava, AIR 1957 SC 912 and Kansara Soni Jivaram Bhudhu vs. Dahibai, AIR 1951 Kutch 36, the Court below has committed an error in allowing the plaintiffs to place on record the revenue 5 record, which was well within their knowledge and the plaintiffs in this manner have succeeded to fill up the lacunae as was noticed by trial Court. I have heard the learned counsel for the parties and also perused the record. The contention of the appellant needs to be rejected for the following reasons:- 1. The documents placed on record were germane to the decision of controversy in issue. They are necessarily required to adjudicate and determine the real controversy between the parties and pronounce the judgment on that basis. The documents were certified copies of public documents/record prepared by the revenue officials in discharge of their official duties. Perusal of the documents in their entirety would show that the plaintiffs’ predecessor-in-interest had purchased land, 4 Marlas and 11 Marlas of land on different dates, which is evident from the revenue record. Thus, the plaintiffs rightfully claimed ownership to the extent of 4/16th shares in the suit land. The documents being necessary were rightly taken on record by the Court below. 2. While allowing the application in terms of Order dated 31.10.1994, the plaintiffs were burdened with costs. Perusal of the order-sheet of the first Appellate Court would show that the costs was accepted unconditionally . 3. The defendants were given adequate opportunity of leading evidence in rebuttal, but they chose not to do so and after some adjournments the parties were heard finally and judgment was pronounced. 6 4. During the course of hearing of the appeal, learned counsel for the defendants had also conceded the claim of the plaintiffs, which is so recorded in the impugned judgment. Thus, having accepted the order, it is clear that plaintiffs are precluded from raising the plea before this Court and the substantial question of law No.1 is answered accordingly. The decisions referred to and relied upon by the learned counsel for the appellants, therefore, are not applicable to the facts of the present case. From the evidence of the plaintiffs’ witnesses, Shri Kuldeep Chand (PW-1), Sant Ram (PW-2) and Sital Ram (PW-3), the plaintiffs have proved that the defendants were trying to change the nature of the suit land and in my view the Court below rightly allowed the appeal and decreed the plaintiffs’ suit and passed the order restraining the defendants from changing the nature of land, making any construction or putting any hedge or cutting any trees from the land in dispute till the suit land is finally partitioned through the Court of competent jurisdiction in accordance with law. I see no ground to interfere with the findings of fact recorded by the first Appellate Court. The questions of law are answered accordingly. The appeal is dismissed. No costs. 4th April, 2008 (Sanjay Karol) (C) Judge