IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.123 of 2000 Judgment reserved on: 28.4.2010 Date of decision : 14.6.2010 __________________________________________________ Narain Singh … Appellant Versus Smt. Satya and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellant : Mr. Romesh Verma, Advocate. For the Respondents : Mr. B.B. Vaid, Advocate, for respondent No.1. None for other respondents. Kuldip Singh, J The plaintiff has come in second appeal against judgment, decree passed by learned District Judge, Shimla on 1.1.2000 in Civil Appeal No.86-S/13 of 1998, affirming judgment, decree dated 1.4.1998 passed by learned Sub Judge Ist Class, Court No.3, additional charge of Court No.2, Rohru in Civil Suit No.56-1 of 1993. 2. The facts in brief are that appellant had filed a suit for declaration and possession regarding land comprised in khata No.329/547min, khasra No.1677 measuring 30-25 Sq.Deci Metres, _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 situate in NAC, Rohru, District Shimla. The further case of the appellant is that his father Jethu got the proprietary rights of the suit land and had become owner in possession thereof on 3.8.1975 vide mutation No.8678. The appellant inherited the suit land and became owner in possession of the suit land after the death of his father Jethu. It has been alleged that Jethu had constructed a shed/kitchen over the suit land which was given to respondent No.1 as tenant, who in collusion with the revenue officials got the entries of “Davedar Bai” over the suit land. The suit land was not transferable by way of sale, gift, exchange etc. for a period of 10 years, therefore, the claim of respondent No.1 that she had purchased the suit land from the father of the appellant is of no consequence. The respondent No.1 had threatened to dismantle the kitchen situate on the suit land. In these circumstances, the suit was filed. 3. The respondents No.2 to 5 were proceeded exparte. The respondent No.6 vide order dated 29.11.1995 was impleaded as defendant. The suit was contested by respondent No.1 and respondent No.6 by filing separate written statements. The respondent No.1 in the written statement took preliminary objections of non-joinder of necessary parties, locus standi, maintainability, limitation, valuation and estoppel. On merits, it has been pleaded that Jethu was owner in possession of land comprised in khasra No.1917/1374/1217/858/405, measuring 0-06 biswas. The conferment of proprietary rights in favour of Jethu was not denied. It has been alleged that respondent No.1 is in possession of land in 3 dispute since 1977, later on land in dispute to the extent, 1 biswa was sold in favour of husband of respondent No.1. Thereafter respondent No.1 and her husband had constructed a shed and a kitchen over the land in dispute. The revenue record showing contrary is wrong. The respondent No.1 is an exclusive owner and is entitled to retain possession of the suit land. The respondent No.1 has claimed adverse possession over the suit land. The jurisdiction of the Civil Court to declare the revenue entries was also denied. The respondent No.1 has prayed for dismissal of the suit. 4. The respondent No.6 Badri Prashad had also contested the suit. In the written statement he has adopted the written statement filed by respondent No.1 but additionally submitted that he has become owner of the khasra No. 1817/1374/1217/858/405 on the basis of sale deed dated 3.6.1980, measuring 1 biswa which is coming in his possession since 1976. He had constructed one kitchen and one room over 1 biswa of land. The appellant had filed replications and reiterated his stand. The learned trial court on 5.4.1994 had framed the following issues:- 1. Whether the plaintiff is owner of the suit land as alleged? .OPP 2. Whether entries in the column of possession as ‘Davedaar Baye’ in the name of defendant No.1 is illegal without status and not binding upon the plaintiff as alleged? OPP 3. Whether the plaintiff is entitled to the relief of declaration and possession as prayed for? OPP 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit is not maintainable in the present form? OPD 4 7. Whether the suit is hit by the provisions of limitation Act? OPD 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Whether the plaintiff is estopped from filing present suit by his act, conduct deeds etc.? OPD 10. Whether defendant No.1 has perfected his title over the suit land by way of an adverse possession? OPD 11. Relief. On 26.3.1996 the learned trial court had framed the following additional issue:- 10A Whether the defendant No.2 is the owner of the suit land? OPD 5. The issues No.1 to 6, 8 and 9 were answered in negative, issues No.7 and 10 were answered in affirmative, no finding was recorded under issue No.10A. The suit was dismissed by learned Sub Judge on 1.4.1998. The learned District Judge on 1.1.2000 upheld the judgment, decree dated 1.4.1998, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the appellant is entitled to decree on the basis of title and the courts below have wrongly held the claim of the plaintiff to be barred by limitation? 2. Whether the findings recorded by both the courts below are vitiated on account of misconstruction, mis-reading and mis- appreciation of the material on record? 3. Whether plea of purchase and adverse possession are self destructive? 6. I have heard Mr. Romesh Verma, learned counsel for the appellant and Mr. B.B. Baid, learned counsel for respondent No.1 and have also gone through the record. The learned counsel for the appellant has submitted that the two Courts below have erred in dismissing the suit of the appellant. The learned District Judge has erred in dismissing the claim of the appellant on the ground that 5 the suit has been filed more than twelve years after the invalid transaction of sale between Jethu and Badri Parshad who had perfected his title by way of adverse possession. It has been submitted that the two Courts below have misconstrued, misread the material on record. The pleas of purchase and adverse possession projected by respondent No.6 are self destructive. The learned counsel for the appellant has prayed for setting aside the impugned judgment, decree and for decreeing the suit. The learned counsel for respondent No.1 has supported the impugned judgment, decree. 7. The issue No.10 is whether defendant No.1 has perfected his title over the suit land by way of adverse possession, the issue No.10-A is whether the defendant No.2 is the owner of the suit land? The amended memo of parties was filed in the learned trial Court on 18.1.1986 and in that Badri Parshad has been shown defendant No.6 who has filed written statement and has shown himself as defendant No.2. It appears for this reason in issue No.10- A reference of defendant No.2 has come. The defendants No.2 to 5 were proceeded exparte on 10.6.1993 and proforma defendant No.2 Malak Ram has not filed any written statement. In issue No.10-A instead of defendant No.2, defendant No.6 should have been referred. In any case neither the learned trial Court nor the learned lower appellate Court has given findings on issue No.10-A. In fact issue No.10 A has not been referred in the judgment of the learned trial Court and judgment of learned lower appellate Court. 8. The learned lower appellate Court in para-13 of the impugned judgment has considered writing mark-A and receipt 6 Ex.DW-2/A and has held that Badri Parshad had acquired title by way of adverse possession whereas issue No.10 of adverse possession is on defendant No.1 Smt. Satya. There is no issue of perfection of title by Badri Parshad by way of adverse possession. In these circumstances determination of issue No.10 is required whether defendant No.1 has perfected her title over the suit land by way of adverse possession and determination on issue No.10-A whether defendant No.6 is owner of the suit land. In view of ultimate order which I intend to pass in the appeal I do not think it proper to decide any aforesaid substantial question of law so that it may not prejudice the case of either side. In the impugned judgment, decree issue No.10 has been decided beyond the scope of the issue and issue No.10-A has not at all been decided. The impugned judgment and decree are not sustainable. The case is liable to be remanded to the trial Court to decide the suit afresh by giving fresh findings on all issues including issue No.10-A which is reframed, ‘whether defendant No.6 is the owner of the suit land’? 9. The result of the above discussion, the appeal is allowed. Judgments, decrees of both the Courts below are set aside. The learned trial Court is directed to decide all issues including issue No.10-A as reframed above. The suit was filed on 18.5.1993, therefore, learned trial Court is directed to decide the suit expeditiously and preferably within six months from the date of receipt of the record. The parties through their counsel are directed to appear before the learned trial Court on 1.7.2010. The Registry 7 is directed to send the record back so as to reach before the date fixed. No costs. June 14, 2010 (Kuldip Singh), (sks) Judge.