IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 404 of 2000. Decided on : 13.5.2010. Lajwanti …Appellant. Versus Neem Akhtar and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Varun Chandel vice Mr. Rajiv Jiwan, Advocate. For the respondents : Mr. T.S.Chauhan, Advocate. Kuldip Singh , Judge (Oral) This appeal has been directed against the judgment, decree dated 22.4.2000 passed by learned District Judge, Bilaspur in Civil Appeal No. 31 of 1991 affirming judgment, decree dated 25.2.1991 passed by learned Sub Judge 1st Class, Ghumarwin in Case No. 17/1 of 1987. 2. The brief facts are that Labha Ram predecessor-in-interest of appellant had filed a suit for declaration that he was owner in possession of land measuring 8 biswas and land measuring 2 bighas comprised in Khasra No. 328, 133/1 respectively, Kitas 2, Village Samoh, Pargana Gehrwin, Tehsil Ghumarwin, District Bilaspur and for permanent prohibitory injunction restraining respondents No. 1 to 4 from interfering on the suit land. The case of the Labha Ram was that 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 he had residential houses over the aforesaid khasra Nos. since the time of his forefathers. The possession of Labha Ram over khasra No. 133/1 was never disturbed by the respondents. However, on 2.6.1986 the respondents threatened to dispossess Labha Ram, therefore, suit was filed. 3. The suit was contested by respondents No.1 to 4 and they took preliminary objections of maintainability, limitation, estoppel, res- judicata, jurisdiction and valuation. On merits, they denied the claim of Labha Ram. They pleaded that no house of Labha Ram was on Khasra No. 133/1 and Khasra no. 328. It has been pleaded that Labha Ram was owner of the entire land. Sitar Mohammed predecessor-in-interest of respondents was non-occupancy tenant who acquired proprietary rights over the suit land. 4. Labha Ram challenged the order of Compensation Officer dated 31.10.1969 before the learned District Judge, Bilaspur and the learned District Judge decided the appeal on 17.3.1970. Labha Ram filed second appeal in the High Court and the appeal was remanded by the High Court on 21.2.1977. The learned District Judge after remand decided the appeal on 16.1.1980 and dismissed the appeal. The respondents ultimately prayed for dismissal of the suit. Labha Ram filed replication in which the claim set-up by the respondents was denied and he reiterated the stand taken by him in the plaint. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession over the suit land as alleged? OPP 3 2. Whether the defendants are interfering over the suit land as alleged ?OPP 3. Whether the suit is not maintainable as alleged? OPD. 4. Whether the suit is time barred as alleged? OPD 5. Whether the plaintiff is estopped to file the suit as alleged? OPD 6. Whether the suit is barred by resjudicata as alleged?OPD 7. Whether this Court has no jurisdiction as alleged? OPD 8. Whether the suit is not properly valued as alleged? OPD 9. Relief. The issues No.1, 2, 3, 7 and 8 were answered in negative and issues No. 4, 5 and 6 in affirmative and the suit was dismissed by the learned Sub Judge on 25.2.1991. In appeal the learned District Judge vide judgment dated 22.4.2000 affirmed the judgment, decree dated 25.2.1991 of the learned Sub Judge. Hence, the second appeal by the present appellant as legal representative of Labha Ram, which has been admitted on the following substantial questions of law: 1. Whether the Courts below have rightly held the suit of the appellant- plaintiff as time-barred? 2. Whether the Courts below have rightly held the suit of the appellant- plaintiff barred by principle of res-judicata? 3. Whether the Courts below have committed a grave error in relying upon the report of the local Commissioner? 6. I have heard Mr. Varun Chandel, Advocate, learned counsel for the appellant and Mr. T.S.Chauhan, Advocate, learned counsel for the respondents and have also gone through the record. On behalf of the appellant, it has been submitted that the two courts below have erred in returning the finding that the suit is time barred and is barred by principle of resjudicata. The report of the Local Commissioner has also been wrongly relied against the appellant. The learned counsel for the 4 respondents has supported the impugned judgment, decree. He has submitted that two courts below have recorded finding of facts regarding limitation and the suit is barred by resjudicata. The Local Commissioner has not found any house, cow-shed on any part of the land in dispute. He has prayed for dismissal of the appeal. 7. The substantial questions of law No.1 to 3 are inter- connected and can be conveniently disposed of collectively, therefore, all of them are being taken up for consideration collectively. Labha Ram had filed suit regarding land comprised in Khasra No. 328, 133/1 Kitas 2 total measuring 2 bighas 8 biswas. It is not in dispute that Sitar Mohd. and one Bashir Mohd. both sons of Roshan had filed application before the Compensation Officer, Bilaspur against Labha and Wali Mohd. for grant of proprietary rights under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. The Compensation Officer vide order dated 31.10.1969 held that Sitar Mohd. and Bashir Mohd cannot be granted any proprietary rights in land comprised in Khasra No. 328. But the Compensation Officer allowed the claim of Sitar Mohd. and Bashir Mohd. for grant of proprietary rights with respect to half of Khasra No. 133 measuring 6 – 10 bighas i.e. 3 bighas 5 biswas. 8. The order dated 31.10.1969 of the Compensation Officer was challenged before the learned District Judge by the tenants as well as by the landlord and both the appeals were decided by the learned District Judge by common judgment dated 17.3.1970 . The appeal filed by tenants was accepted while the appeal filed by the landlord was rejected. The judgment dated 17.3.1970 passed by the learned District 5 Judge was assailed by landlord in the High Court which was allowed on 21.2.1977 and the case was remanded to learned District Judge. 9. The learned District Judge after remand decided the appeal vide judgment dated 16.1.1980 Ex.DA. It appears from judgment Ex. DA that the High Court affirmed the grant of proprietary rights with respect to land comprised in Khasra No. 133 but grant of proprietary rights with respect to Khasra No. 328 was revoked. The learned District Judge vide judgment dated 16.1.1980 Ex.DA dismissed the claim of the landlord. The Compensation Officer had granted proprietary rights of half of Khasra No. 133 to the predecessor-in-interest of the respondents and they have purchased remaining part of Khasra No. 133 which is reflected in mutation Ex.D-2. The learned counsel for the respondents has relied Ex.D-3 copy of jamabandi for the year 1984-85 in order to show that respondents are owners in possession of Khasra No. 328 measuring 8 biswas. He has submitted that presumption of truth is attached to Jamabandi Ex.D-3 for the year 1984-85. 10. The learned counsel for the respondents has failed to point out on what basis the entry with respect to Khasra No. 328 has been made in Ex.D-3 jamabandi for the year 1984-85. In these circumstances, no presumption of truth is attached to Ex.D-3 so far as it refers that Sitar Mohd. is owner in possession of Khasra No. 328. The Ex.D-3 copy of jamabandi cannot be relied for coming to the conclusion that Sitar Mohd is owner in possession of Khasra No. 328. Therefore, it can be safely held that Labha Ram during his life time and thereafter his legal representative appellant is owner in possession of Khasra No. 328 measuring 8 biswas. 6 11. In view of above discussion the suit is neither barred by limitation nor by principle of resjudicata. The two Courts below have mis-construed and mis-interpreted the material on record more particularly judgment Ex.DA with respect to ownership and possession of Khasra No. 328. The report of Local Commissioner is not of much help to either side in view of the fact that there is sufficient material on record to come to the conclusion that Labha Ram during his life time and thereafter appellant is owner in possession of Khasra No. 328. The findings recorded by the two courts below with respect to ownership and possession of Khasra No. 328 are not sustainable and are liable to be set-aside. The appeal to this extent is liable to be accepted. The substantial questions of law No. 1 to 3 are accordingly decided. 12. No other point was urged. 13. The result of the above discussion, the appeal is partly allowed, impugned judgment, decree dated 22.4.2000 passed by the learned District Judge, Bilaspur are partly set-aside and the suit of the appellant is partly decreed, appellant is held owner in possession of Khasra No. 328 measuring 8 biswas and the respondents are restrained from interfering in possession of the appellant over land comprised in khasra No. 328 measuring 8 biswas. The remaining claim of the appellant is dismissed. No costs. ( Kuldip Singh ) Judge. May 13, 2010. (GR)