IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 235 of 2000. Date of decision: 13.11.2009 Surinder Kumar and others. …. Appellants Versus Ishwar Dass and others. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellants: Shri Ajay Sharma, Advocate. For the respondents: Sh.Y.P.S.Dhaulta, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) This Regular Second Appeal is directed against the judgment of the learned District Judge, Kangra at Dharamshala dated 29.2.1999 whereby he has dismissed the Civil Appeal No.130-P/XIII-99 filed by the present appellants (hereinafter referred to as the ‘defendants’) and confirmed the judgment and decree for possession of the suit land passed by the learned Sub Judge 1st Class (I), Palampur. 2 The facts in brief are that the respondents (hereinafter referred to as the ‘plaintiffs’) filed a suit against Ganpat, his wife Kaushalya Devi and one Kaka Ram alias Sarwan to the effect that they are owners of the suit land and that the defendants have forcibly taken over possession of the suit land. In the plaint, it is further alleged that previously also the defendants had tried to interfere in the possession of the suit land and at that time the plaintiffs had filed a suit against the defendants and obtained a decree restraining the defendants from interfering in their possession and by the same decree, the plaintiffs were also held to be owners in possession of the suit land. Issues were framed and the plaintiffs led evidence. The case was listed for the evidence of the defendants on 4.8.1998. Neither any witness was summoned nor list of witnesses was filed. On the request of learned counsel for the defendants, the matter was then adjourned to 19.11.1998. Again no steps were taken nor witnesses were present. Thereafter, on two dates, the learned District Judge was not available and the matter was listed on 7th June, 1999. Again no witnesses were present nor list of witnesses etc. was filed. The last opportunity was granted and the case was adjourned to 3 28.7.1999 subject to payment of cost of Rs.75/-. On 28.7.1999 neither the defendants nor their counsel appeared. Since it was the last date given, the defendants were proceeded against ex parte. The learned Judge proceeded to hear arguments and the judgment was announced on the same date. The appellants thereafter did not file any application for setting aside the ex parte proceedings but straightaway filed an appeal challenging the decree itself. This is legally permissible and in such an appeal the appellant can also challenge the ex parte orders. However, in case they choose to file an application for setting aside the ex parte decree then they have a right to lead evidence on the issues framed whereas when they choose to file an appeal against the decree itself then in my opinion, they gave up their right to lead such evidence. Be that as it may the fact remains that 28.7.1999 was the last date given for leading evidence. Neither steps were taken nor any explanation was forthcoming as to why the counsel did not appear on the said date. In the grounds of appeal before the learned District Judge, one of the grounds taken was that the 4 advocate of the defendants was never informed about the date fixed for defendants’ evidence nor did he appear in Court on 28.7.1999 when the defendants were proceeded against ex parte. This ground makes no sense. As already mentioned above on 7.6.1999 Sh.S.K.Bhardwaj, Advocate for the defendant was present. His presence was marked. It is presumed that the judicial record is properly maintained. In any event Sh.S.K.Bhardwaj does not deny the fact that he was present on 20.3.1999 when the case was adjourned to 7th June, 1999. Assuming for the sake of arguments that he was not present on 7th June, 1999, was it not his duty to know what had happened in the case on the said date. The order of 7th June, 1999 shows that he was present and there is no reason to dis-believe what is mentioned in judicial order. Thereafter, the matter was listed on 28th July, 1999 and it was the last opportunity given. It is obvious that since evidence was not available, the defendants tried to set up a false plea that the counsel was not present on the previous date. Next contention of Sh.Ajay Sharma is that on merits even on the basis of ex parte evidence, no decree could have been passed against his clients. He submits 5 that in the previous suit, Ganpat Ram was not a party and as such there was no injunction against Ganpat Ram. I have perused Ex.P/2 which shows that the previous decree was passed in favour of Sh.Ishwar Dass, one of the plaintiffs and the said decree was against Kaushalaya Devi, wife of Ganpat Ram, Smt.Kushla Devi, wife of Parshotam, Amar Singh and Partap Chand, sons of Gurditia and Harbhajan son of Charhtu Ram. Kaushalaya Devi was a party to the main suit. In the suit, the decree passed is that the plaintiffs are owners in possession of the suit land and the defendants are restrained from interfering in any manner whatsoever with the suit land. Therefore, the original plaintiffs were held to be owner in possession. True it is that Ganpat Ram was not a party to the earlier suit but his wife Kaushalya Devi was a party therein. A decree holding Ishwar Dass to be in possession was passed in the year 1986. This decree was never challenged by Kaushalya Devi. It is not the case of the appellants that Kaushalya Devi had colluded with the plaintiffs when the earlier decree was passed. Since this decree was not challenged and had attained finality, it must be presumed that Ishwar Dass was found to be in 6 possession. Since this decree was passed on 31.12.1986, he must be held to be in possession on the said date. The present suit was filed on 10.11.1994, i.e. within eight years of the passing of the earlier decree. Therefore, even if defendants had taken possession during this period they could never be said to be in adverse possession of the suit land. In view of above discussion, I find no merit in the appeal which is accordingly rejected. No order as to costs. November 13, 2009 ( Deepak Gupta ) (m) Judge