IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 268 of 2001 Date of decision: 13.10.2011 Faquir Chand and another …Appellants. Versus Rattan Chand and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants : Mr. Sanjeev Kuthiala, Advocate For the respondents : Ms. Devyani Sharma, Advocate. Kuldip Singh , Judge ( Oral ) This appeal has been directed against judgment, decree dated 22.3.2001 passed by learned District Judge, Una in Civil Appeal No. 116 of 1995 affirming judgment, decree dated 22.5.1995 passed by learned Sub Judge 1st Class, Court No.1, Amb in Civil Suit No. 192 of 1992. The appellants are the plaintiffs. 2. The facts, in brief, are that the appellants had filed a suit for permanent prohibitory injunction against the respondents restraining them from interfering in peaceful possession of the appellants on suit land more specifically described in the plaint. In the plaint, in alternative decree for possession has also been prayed. The further case of the appellants is that respondents have no right, title or interest over the suit land and they are threatening to interfere on the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 suit land, they also intend to dispossess the appellants from the suit land. 3. The suit was contested by respondents by filing written statement in which preliminary objections of maintainability, estoppel, suppression of material facts, mis-joinder and non-joinder of necessary parties have been taken. On merits, the claim of the appellants has been denied. The site plan has not been admitted. It has been pleaded that cattle shed of respondent No.1 is still in existence over the suit land. The appellants are not in possession of the suit land. The cattle shed and courtyard of the respondents are situated on the suit land. They have never threatened to divert the flow of water over the suit land. The prayer has been made for dismissal of the suit. The replication was filed and the case set-up in the plaint was reiterated. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit site ABKJIHGFDEM is part of land bearing khasra No. 1456 and is in possession of the plaintiffs and their brothers? OPP 2. Whether the cattle-shed, residential house and retaining wall and courtyard of plaintiffs are situated over the suit site denoted by letters ABKJIHGFDEM, as alleged? OPP 3. If issue No. 1 & 2 are proved in affirmative, whether the plaintiffs are entitled to the relief of injunction, as prayed for? OPP 3 4. If the plaintiffs are proved to be out of possession of suit site, whether they are entitled to the relief of possession in the alternative, as alleged? OPP 5. Whether the suit is not maintainable? OPD 6. Whether the act and conduct of plaintiffs is a bar to the present suit? OPD 7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 8. Whether the defendant No.1 is in possession of the suit land and his cattle-shed is situated over the same, as alleged? OPD 9. Whether the site plan adduced by the plaintiffs is wrong, as alleged? OPD. 10. Relief. Under Issue No.1, it has been held that appellants are in possession of suit site, but respondent No.1 is also in possession of suit site. Under issue No.2, it has been held that residential house of the appellants is situated over the suit site. Issues No. 3 and 9 were answered in affirmative. Issue No.8 has also been answered in affirmative, but it has been held that appellants are also in possession of the suit land. Issues No. 4 to 7 were answered in negative. 5. The trial Court partly decreed the suit of the appellants as per operative part of the judgment on 22.5.1995. In appeal, the learned District Judge on 22.3.2001 upheld the judgment, decree dated 22.5.1995, hence second appeal which has been admitted on the following substantial questions of law:- 4 1. Whether the learned Courts below have mis-read and misconstrued the oral and documentary evidence on record, especially the statements of PW-1 Faquir Chand, PW-2 Bishan Dass, PW-3 Dhera Singh, DW-3 Gian Chand, DW-4 Prem Chand, Ext.P-1 copy of Khatauni Bandobast for the year 1986-87, Ext.PW-2/A site plan? 2. Whether on the proper constructions of the pleadings of the parties and the evidence on record and the provisions of law, especially the law pertaining to the rights of co- owners as also the H.P.Land Revenue Act, the findings of the learned Courts below are vitiated? 3. Whether in a boundary dispute, it is incumbent for the court to get a demarcation in accordance with the H.P.High Court Rules and Orders and Financial Commissioners instructions to adjudicate the dispute? 4. Whether the relief of injunction restraining one of the co- owners acting in detriment to the alleged joint property can be granted by the civil court pending the final partition and subject to adjustment? 6. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the appellants that the two Courts below have misconstrued the oral and documentary evidence especially the statements of PW-1, PW-2, PW-3, DW-3, DW-4, Ex.P-1 and Ex.PW-2/A. The rights of co-owners have not been properly considered. There is a boundary dispute, it was incumbent on the Courts below to get the demarcation to adjudicate 5 the dispute properly. The learned counsel for the appellants has submitted that the appellants are entitled to decree as prayed in the plaint. The learned counsel for the respondents has supported the impugned judgment, decree. She has submitted that the two Courts below have properly appreciated the material on record and no fault can be found with the impugned judgment, decree. She has prayed for dismissal of the suit. 7. The substantial questions of law No. 1 to 4 are interconnected, therefore, all of them are taken up collectively for determination. The suit has been filed by the appellants for permanent prohibitory injunction with respect to specific khasra number. In the alternative, prayer has been made for decree for possession. In the plaint, there is no foundation that appellants are not in possession of the suit land. There cannot be a plea in the plaint that appellants are not in possession once the suit basically is for permanent prohibitory injunction. There is no plea in the plaint that the decree of possession may be granted to the appellants in case the appellants are dispossessed during the pendency of the suit nor there is a finding recorded by the Courts below that the appellants were dispossessed during the pendency of the suit. Therefore, the appellants cannot be granted relief of possession in view of the nature of the suit filed by them. 8. PW-1 Faquir Chand in his examination in chief has stated that he is in possession of the suit land. He has admitted in cross- examination that a cow-shed of the respondents is adjacent to their residence. PW-2 has prepared the plan Ex.PW-2/A. He has stated that 6 he has shown the possessions in the plan as disclosed to him by the appellants. PW-3 has stated that cow-shed of Rattan Chand is towards the west side of the house of the appellants. 9. DW-1 Rattan Chand has stated that he has constructed his cow-shed over the suit land comprised in Khasra No. 1456 since the time of his ancestors. There is a open space in front of the cow- shed and he is tethering cattle in that open space. DW-2 has prepared the site plan Ex.DW-2/A. DW-3 Gian Chand has stated that there is a cow-shed of Rattan Chand over the suit land. DW-4 has also stated that there is cow-shed of Rattan Chand over the suit land. The suit has been filed by the appellants by claiming themselves to be exclusive owners in possession of the suit land. 10. It has come in the evidence that there is a cow-shed of Rattan Chand over the suit land. The question of co-owners is not involved in the dispute inasmuch as the suit filed by the appellants is based upon their ownership and possession. The respondents have denied their claim and they have submitted that the cow-shed of respondent No.1 is also on the suit land. The appellants never approached the Court by claiming themselves as co-owners of the suit land alongwith the respondents. The question of boundary dispute is also not involved in the suit. The suit has been filed with respect to specific land comprised in Khasra No.1456. The site plan Ex.PW-2/A has been prepared by PW-2 as per information disclosed by appellants. The site plan Ex.DW-2/A is more authentic has been rightly relied. In Ex.P-1 copy of Khatauni possession of appellants over suit land has not been shown, therefore, appellants cannot take benefit of 7 Ex.P-1. The two Courts below have rightly appreciated the material on record. On behalf of the appellants, it has not been pointed out that the impugned judgment and decree are based upon some inadmissible evidence or some material evidence which has important bearing on the merits of the case has been ignored. It has not been established that two Courts below misconstrued the statements of PW-1, PW-2, PW-3, DW-3 and DW-4. The substantial questions of law No. 1 to 4 are decided against the appellants. 11. In view of above discussion, the appeal fails and is accordingly dismissed October 13, 2011. ( Kuldip Singh ), (GR) Judge.