IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 432 of 1999 Date of Decision : June 29 , 2011 Sawanu Ram & Ors. …Appellants/Defendants v. Nathu Ram …Respondent/Plaintiff. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellants/: Mr. G. D. Verma, Sr. Advocate with defendants Mr.B. C. Verma, Advocate. For the respondent/ : Mr. Dinesh Bhanot, Advocate. Plaintiff Sanjay Karol, J (Oral). This regular second appeal, filed under Section 100 of the Code of Civil Procedure was admitted on the following substantial questions of law:- “3. Whether appellants being proprietors in the revenue estate, cannot be ordered to be dis- possessed in a suit filed by the Respondent? 4. Whether suit in the present case was barred by the principle of resjudicata and the bar as contained under order -2, rule-2 CPC.” . 2. All litigations must come to an end at some stage. Unfortunately, parties have been litigating since the year 1987. In 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the first round of litigation, plaintiff Nathu Ram was unsuccessful. However, in the second round, plaintiff Nathu Ram has been successful in convincing the Courts below for decreeing his suit. In my considered view, they have seriously erred in doing so. They have erred in not properly appreciating the contentions raised by the parties and the findings returned in the earlier litigation interse between the parties. 3. On 14.8.1987, plaintiff Nathu Ram (respondent herein) filed Civil Suit No. 205/1 of 1987 against Sawanu Ram, Faquir Chand, Fateh Chand and Jagat Ram, defendants No.1 to 4 (appellants herein) and also against one Om Parkash. The suit was for permanent injunction seeking an order of restraint against the defendants from interfering with the suit property situated in village Bhatian, Pargana Plassi, Tehsil Nalagarh, Distt. Solan. The defendants resisted the suit, inter alia, on the ground that plaintiff had no right, title or interest in the suit property and the same was in fact owned and possessed by them. 4. On the rival contentions of the parties, the trial Court in Civil Suit No. 205/1 of 1987 framed the following issues:- “1. Whether the plaintiff is in possession of the suit property as owner? ....OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction? ....OPP 3. Whether the def. No.1 is owner of the suit land and defs. No. 2 to 4 are in possession as mortgagees, as alleged? ..OPD 4. Whether the defendants are entitled to the relief of injunction as prayed for? ..OPD 3 5. Whether the parties are entitled to special costs? ...OP Parties 6. Relief.” 5. Plaintiff failed to prove his possession and the trial Court decided issues No. 1 & 2 against him. In terms of judgment and decree dated 31.10.1992 passed by Sub Judge Ist Class, Nalagarh, the plaintiff’s Civil Suit No. 205/1 of 1987 was dismissed. Civil Appeal No. 01-NL/13 of 1993/1992 titled as Nathu Ram vs. Sawanu Ram & Ors. was also dismissed by the Addl. District Judge, Solan Camp at Nalagarh, in terms of judgment and decree dated 13.6.1994 (Ext.PA/1). It is not in dispute that the same acquired finality and the first round of litigation between the parties came to an end. 6. Inspite of the same plaintiff pursued the matter by again initiating fresh round of litigation. Accordingly on 20.10.1994, he filed Civil Suit No. 240/1 of 1994 for possession with respect to the very same property. The suit was resisted by the defendants, inter alia, on the ground that the suit was barred by resjudicata and that the plaintiff had no right, title or interest in the suit property. Significantly in the said suit, plaintiff did not array original defendant No.5 as a party. 7. Based on the pleadings of the parties, trial Court in Civil Suit No. 240/1 of 1994 framed the following issues:- “1. Whether the plaintiff is entitled for the possession of the suit land? ....OPP 2. Whether this suit is not maintainable? ..OPD 4 3. Whether the suit is bad for non-joinder of necessary parties? ..OPD 4. Whether the plaintiff has no locus standi? ...OPD 5. Whether the suit is hit by the principle of resjudicata? ..OPD 6. Relief.” 8. Both the parties led evidence. However, in terms of judgment and decree dated 12.10.1998, plaintiff’s Civil Suit No. 240/1 of 1994 titled as Nathu Ram vs. Sawanu Ram & Ors. was decreed and the defendants were directed to hand over possession of the suit premises to the plaintiff. In an appeal preferred by the defendants, findings, judgment and decree passed by the trial Court was affirmed by way of impugned judgment and decree dated 21.4.1999 passed in Civil Appeal No. 35-NL/13 of 1998. Operative portion of the impugned judgment reads as under:- “12. The contention of the plaintiff, which has found favour with the trial Court was that the disputed land was Abadi Deh and the plaintiff being in its possession for 40 years since the time of his father as a village proprietor has become its owner. Thereafter, the plaintiff is said to have been dispossessed by the defendants on 1st/2nd August, 1987 from the disputed land and, therefore, the plaintiff was seeking the possession of the disputed land against the defendants. The defendants have admitted that the disputed land was Abadi Deh, but it was denied by the defendants that this land was ever in possession of the plaintiff or his father. The land was firstly stated 5 to be in possession of Dev Raj and thereafter in possession of defendant Sawanu Ram, and it was denied that the defendants have dispossessed the plaintiff from the disputed land. The claim of the plaintiff for possession of the disputed land is also resisted by the defendants by taking a plea that this land being Abadi was the joint land of the village proprietors and no one village proprietor can claim the possession of it against the other village proprietor without the partition of the village Abadi. In my view, both these contentions of the defendants were not correct. 13. In case of village Abadi, the ownership of land vests in village proprietor, who is found in its possession. Thus, a village proprietor, who is in settled possession of village Abadi can maintain a suit for possession of village Abadi against the other village proprietor in case he is dispossessed of it unlawfully. It is not open to one village proprietor to dispossess the other village proprietor from Abadi land and then to drag the latter to partition proceedings for recovery of possession. This is not permissible. Therefore, if it is held that plaintiff Nathu Ram was in settled possession of the disputed land for the last 40 years, in that event, he can maintain the suit for possession against the defendants for the reason of his unlawful dispossession by them. 14. The fact that the plaintiff was in possession of the disputed land and was dispossessed of it during the pendency of earlier suit is made out from the copy of judgment in appeal, Ext.PA/1, in civil suit No. 205/1 of 1987. This fact is also made out from the allegations in the FIR, Ext.PW5/A, dated 1-8-1987 lodged by Nathu Ram at Police Station Nalagarh. 6 Apart from this, the plaintiff’s witnesses Shri Banta Singh (PW3) and Malkita (PW4) have also supported the plaintiff’s version that the disputed land was earlier in possession of his father Sulekh Chand and after his death in the year 1967/1968, this land came to be possessed by plaintiff Nathu Ram. As against this, the statement of defendant Sawanu Ram, do not find support from any independent witness except Faquir Chand (DW3), who himself is a defendant in the case and, therefore, an interested witness. The version of defendant Sawanu Ram that the disputed land was earlier in possession of Dev Raj and was bequeathed in his favour by Dev Raj alongwith agricultural land, if true, could have been very easily proved by bringing on record the Will of Dev Raj. But no Will from the side of Dev Raj produced on record to show that Dev Raj had actually bequeathed the disputed land in favour of Sawanu Ram.” (Emphasis supplied) 9. Significantly, Courts below have not taken into account the findings returned by the trial Court in earlier suit. (Civil Suit No. 205/1 of 1987), wherein it was held that the plaintiff was neither owner nor in possession of the suit premises. Thus, the findings had attained finality. Significantly, even in the instant plaint, plaintiff has not given any reference of old litigation nor has he set up his claim for possession of the land on the basis of any title. To the contrary, foundation of the suit is based on acquisition of right in the property by virtue of adverse possession. Relevant paragraphs of the plaint are reproduced as under:- 7 “3. That the said Plot is situated in the Abadi Deh of village Bhatian. The plaintiff is a resident of the same village and has his possession after the death of his father Late Sh. Sulekh Chand about 20 years ago before the plaintiff. The father of the plaintiff had the possession over the said plot and used the same as cow-shed and to keep their grass etc. for their cattles. Hence in this way the plaintiff is owner in possession of the abovesaid plot and the same plot is being used exclusively by the plaintiff. The plaintiff has a peaceful possession over the said plot for the last more than 40 years. 4. That the defendants who are also the residents of the same village are trying to oust the plaintiff illegally and forcibly from the plot.” 10. Quite apparently, plaintiff has admitted the title of defendant No.3 in the said suit. Thus, the findings returned by the lower Appellate Court in the impugned judgment, reproduced hereinabove, are not only erroneous, based on incorrect appreciation of material on record but are contrary to the stand and plea taken by the plaintiff himself. He had taken a totally false plea. His dispossession, admitted by him could not have bad to filing of a subsequent suit on the ground of continuous possession. The findings returned by the Courts below are perverse warranting interference by this Court. It has led to travesty of justice also. 11. In view of the aforesaid, the questions of law are answered accordingly and the appeal is allowed. The judgment and decree dated 21.4.1999 passed by the Addl. District Judge, 8 Solan Camp at Nalagarh is set aside and civil suit filed by the plaintiff is dismissed. June 29, 2011. (Sanjay Karol) (rana) Judge.