IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.347 of 1999 Date of Decision: 4.12.2009 Shamsher Singh …appellant. Versus. Sansar Chand and others. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the appellant: Mr. Sanjeev Kuthiala, Advocate. For the Respondents No. 1 to 4.: Mr. S.S.Mittal, Sr. Advocate with Shri Dev Raj Dev, Advocate. Per Deepak Gupta, J.(Oral) This Regular Second Appeal is directed against the judgement and decree dated 30.08.1999, passed by the learned District Judge, Una, in Civil Appeal No.214 of 1993, whereby he has dismissed the appeal filed by the appellant (here-in-after referred to as the defendant) and upheld the judgement and decree passed by the learned Sub Judge 1st Class, Amb, dated 19.10.1993, decreeing the suit of the respondents (here-in-after referred to as the plaintiffs). Briefly stated the facts of the case are that the plaintiffs filed a suit claiming that they are the owners of Khasra Nos.2399 and 2400 which were part of old Khasra No. 2817. The plaintiffs alleged that earlier also they had instituted a suit against the defendant No.1 in the same Court. In the said suit, the defendant 2 No.1 had filed a written statement admitting the title and possession of the plaintiff over Khasra No.2817. Thereafter, the suit was dismissed as withdrawn. The plaintiffs alleged that in April, 1990, the defendant forcibly encroached upon the land and raised the construction of a latrine on a portion thereon. The plaintiff prayed that a decree for possession of the suit land be passed in their favour. The defendants resisted the suit and according to them they had raised the construction of a latrine as far back as 1977- 78 and without any objection or demur by the plaintiffs. On this basis it was alleged that the defendants have become owner of the suit land by way of adverse possession. The fact that in the earlier suit the defendant No.1 had admitted the ownership of the plaintiffs was not denied. The learned trial Court decreed the suit of the plaintiffs. Before the lower appellate Court an application for leading additional evidence under Order 41 Rule 27 CPC was filed by the defendant. In this application it was alleged that in fact Khasra Nos.2399 and 2400 did not form part of old Khasra No. 2817 but formed part of Khasra No.2816 and according to the defendant this was reflected in the settlement record. This application was dismissed by the learned lower appellate Court on two grounds; firstly, that the appeal against the order of the Settlement Officer was pending and secondly that the defendant could not be permitted to lead such evidence since in the pleadings no such defence was taken. 3 I have heard Shri Sanjeev Kuthiala, learned counsel for the appellant-defendant and Shri S.S.Mittal learned counsel for the respondents-plaintiffs. The main contention of Shri Kuthiala, learned counsel for the appellant-defendant is that in the settlement record, as corrected, the Khasra Nos.2399 and 2400 new are shown to be part of old Khasra No. 2816. He, therefore, submits that this is a relevant piece of evidence and the learned Court below erred in not allowing the application under Order 41 Rule 27. It is contented that if this evidence is permitted to be taken on record it will be obvious that the statement made by the defendant in the previous suit is of no relevance in the present suit. Shri Kuthiala, learned counsel for the defendant also contends that the presumption of truth is attached to the latest entries in the records of rights and it should be presumed that the previous entry has been legally substituted unless it is otherwise. In this behalf he has placed reliance on a judgement of a learned Single Judge of this Court in Ram Parkash vs. Geeta Devi and others, 1999(1) S.L.J 16. On the other hand Shri Mittal, learned senior counsel for the plaintiffs urges that since the defendant never took up this plea in the written statement they cannot be permitted to lead any evidence in this regard. With the assistance of the learned counsel for the parties I have gone through the record. In the heading of the plaint it is clearly mentioned that the suit is for possession of the land measuring 0-00-96 hectare being part of old khasra No.2817 4 corresponding to new khasra Nos. 2399 and 2400. In para 3 of the plaint it was alleged that the defendant in April 1990 had forcibly encroached upon the suit land forming new Khasra No. 2399 and 2400 as detailed in the head note of the plaint. In the prayer clause it was prayed that a decree for possession of land measuring 0-00-96 hectare being part of old Khasra No.2817 corresponding to new Khasra Nos.2399 and 2400 as per latest revenue record be passed. In the written statement a plea was taken that the admission, if any, made in the earlier suit was not binding on the defendant No.2 brother of defendant No.1 since she was not a party in the earlier suit. A specific plea was raised that the suit is hit by Order 2 Rule 2 CPC on the ground that the subject matter of this dispute was subject matter of the earlier plaint also. The suit was also contested on the ground that the construction was raised as far back as 1977-78. Nowhere in the written statement any plea was raised that the land in question did not form part of Khasra No.2816, nor was any plea raised that this land was not the part of the land which formed subject matter of the earlier suit. Now, during the proceeding before the Appellate Court an application was moved that in settlement proceedings Khasra Nos.2399 and 2400 are stated to have been carved out of Khasra No.2816. In my opinion, the learned lower Appellate Court was absolutely right in holding that such evidence could not be permitted to be led in the absence of any pleadings to this effect. The law is very clear that a party can only be allowed to lead evidence which is in accordance with its pleadings. When the defendant had never pleaded before the trial Court that 5 the suit land was not part of Khasra No.2817 but was part of Khasra No.2816, such evidence could not be permitted to be led. Therefore, even if the fact that the order of the Settlement Officer had been challenged in appeal is ignored, I am of the considered view that such evidence could not be permitted to be led in the absence of such pleadings. Coming to the merits of the case both the Courts below have come to a finding of fact that the construction in question was raised only in the year 1990 and the appellant had not become owner by way of adverse possession. This is a pure finding of facts which cannot be disturbed in second appeal. Consequently, I find no merit in the appeal which is accordingly dismissed. 4th December, 2009. ( Deepak Gupta ) ™ Judge.