HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 183 of 2009 Decided on: 29.6.2010 Hem Raj and others ………Appellants. Versus State of H.P. and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Aman Sood, Advocate. For respondent No.1: Mr.J.S. Guleria, Assistant Advocate General. For respondents No.2, 4 and 5: Mr.Himat Negi, Advocate. V.K. Ahuja, J (Oral): This is an appeal filed by the appellants under Order 43 Rule 1 of the Code of Civil Procedure against the order, dated 25.2.2009, passed by the learned Additional District Judge (Fast Track Court), Hamirpur, H.p., in CMA No.117 of 2007 in Civil Appeal No.93 of 2007, whereby the application filed by the appellants under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was dismissed. Being aggrieved, the appellants have filed the present appeal. 2. Briefly stated the facts of the case are that the appellants as plaintiff filed a suit as against the respondents for declaration that the land in question _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - is owned and possessed by the appellant/plaintiffs alongwith Krishna Mandir and the revenue entries showing defendant No.1 i.e. State of H.P. as the owner and defendant No.2 in possession of the suit land are illegal, null and void. The said suit was dismissed by the learned trial Court and an appeal filed by the appellants is pending before the learned Appellate Court. Alongwith the appeal, an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC was filed by the appellant/plaintiffs, which has been dismissed by the learned Appellate Court and against the said order, the appellants have come up in the present appeal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. It is clear from the impugned order passed by the learned Appellate Court that the appellants were not held in possession of the suit land as owner at any time. The learned Appellate Court has observed that the suit land is a public property and is being used by the public at large and has been kept in an allotable pool. It was further observed that the applicants have not produced any tatima of specific portion to suggest that they are in adverse possession of it. Thus, no prima facie case was made out in favour of the appellants. 5. The record of the case has not been summoned and the same is not necessary since the appellants had made various prayers which had been considered by the learned - 3 - Appellate Court and I do not find any infirmity in the said order passed by the learned Appellate Court. No prima facie case was made out in favour of the appellants. The only submission made by the learned counsel for the appellants was that the learned Appellate Court has made observations on the merits of the case, while disposing of the application filed under Order 39 Rules 1 and 2, which observations should not be construed as an opinion expressed on the merits of the case. According to law, any order passed in application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure cannot be construed as an opinion expressed on the merits of the case and therefore, it is desirable that the learned Appellate Court shall consider this observation and dispose of the appeal on merits without being affected by any observations made by him while disposing of the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. 6. In view of the above discussion, no prima facie case is made out in favour of the appellants and accordingly the impugned order passed by the learned Appellate Court does not call for an interference by this Court. Therefore, the appeal filed by the appellant is dismissed, so also the pending applications, if any. June 29, 2010 (V.K. Ahuja), (TILAK) Judge.