IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 533 of 2001 Date of Decision : September 23, 2011 Deep Ram & Ors. …Appellants Versus: Rajesh & Ors. …Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No. For the appellants: Mr. Tek Chand Sharma, Advocate For the respondents : Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate. Sanjay Karol, J. (Oral) This is the plaintiffs’ Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908. Plaintiffs’ suit for declaration and injunction stands dismissed by the learned Sub Judge(3), Shimla, in terms of judgment and decree dated 30.12.1997 in Civil Suit No.290/1 of 96/92, titled as Deep Ram and another vs. Rajesh and others. Findings of fact, judgment and decree stand affirmed by the learned District Judge, Shimla, in terms of judgment and decree dated 1.6.2000 passed in Civil Appeal No. 30-S/13 of 1998, titled as Shri Deep Ram and another vs. Shri Rajesh and others. 2. Appeal was admitted on the following substantial questions of law:- - 2 - “3. Whether the judgment is vitiated on account of mis-reading of evidence and misinterpretation of the documents placed on record? 10. Whether the Ld. Lower Courts below have rightly dismissed the application U/O 10 rule 2 & 4, u/o 16 Rule 14 and 18 read with section 151 C.P.C.” 3. In the suit filed by the plaintiffs (appellants herein), the challenge essentially is to the Gift Deed dated 29.7.1992 (Ext.P-1) executed by Smt. Kaushalya Devi (defendant No.7) in favour of defendants No.1 to 6. According to the plaintiffs, gift deed was executed by exercising fraud and is thus void. Plaintiffs’ claim themselves to be in possession of the land which is subject- matter of the gift deed since the time of their ancestors and, as such, want the Court to pass a decree of injunction, restraining defendants No.1 to 6 from interfering with the same. 4. Based on the respective pleadings of the parties, trial Court framed the following issues. 1. Whether the gift deed dated 22.9.93 made by defendant No.7 in favour of the defendants No.1 to 6 is wrong, illegal and inoperative? ……OPP 2. Whether the plaintiffs are entitled for relief of permanent injunction? …OPP 3. Whether the plaintiffs are estopped from filing the suit by their acts & conducts? …OPD 4. Whether the suit is not within time? ..OPD - 3 - 5. Whether the plaintiffs have no cause of action and suit is not maintainable? ..OPD 6. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? ..OPP 7. Relief. 5. All issues except for issue No.4 were decided against the plaintiffs and in favour of the defendants. Suit filed by the plaintiffs was dismissed. Lower Appellate Court affirmed the findings of facts returned by the trial Court. 6. Gift deed (Ext.P-1) stands validly proved by defendants No.1 to 6 through the testimony of marginal witness Sh. Bal Krishan (DW-1) as also other witnesses. That Smt. Kaushalya Devi was in possession of the land as owner thereof also stands proved through the revenue record pertaining to the years 1968- 69 onwards upto the year 1988-89. Ext.DW-2/A, Ext.DW-2/B, Ext.DW-2/C & Ext.DW-2/E have also been proved by the defendants to this effect. Pursuant to execution of the Gift Deed (Ext.P-1), land also stood mutated in favour of defendants No.1 to 6, is evident from the revenue record which pertains to the year 1992-93. 7. Courts below have concurrently held that plaintiffs have failed to show and prove their possession over the suit land. Their plea that defendant No.7, who in fact is their aunt, had relinquished her share in their favour does not stand proved on record. No doubt defendant No.7, who was alive at the time of recording of evidence, has not stepped into the witness box on - 4 - behalf of the contesting defendants, nonetheless to prove the fact of relinquishment, it was incumbent upon the plaintiffs to have examined her as their witness. In this regard, no error can be found in the order passed by the trial Court with regard to the plaintiffs’ application filed under Order 10 Rules 2 & 4 and Order 16 Rules 14 & 18 read with section 151 C.P.C.. Plaintiffs had to stand at their own legs to prove their case. Having failed to do so and that too at a belated stage, their aforesaid application was thus rightly dismissed by the trial Court. 8. Testimonies of the witnesses examined by the parties have been carefully examined. Defendants have also shown their continuous possession over the suit land. As such, no error can be found with the impugned judgments. 9. From the record, it could not be shown as to in what manner concurrent findings of fact returned by the Courts below are erroneous or perverse. It cannot be said that Courts below have failed to take into account or correctly appreciate the evidence (oral and documentary) placed on record by the parties. It also cannot be said that provisions of law have either not been correctly appreciated, misinterpreted or wrongly applied to the instant case. 10. No substantial question of law as framed arises for consideration in the present appeal and the same is accordingly dismissed. September 23, 2011 ( Sanjay Karol ), (rana) Judge.