IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 208 of 1996. Judgment reserved on :28.5.2008. Decided on: June 5th, 2008. Kishori Lal. …… Appellant. Versus Bisia and another. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellant : Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta ,Advocate. For the respondents : Mrs. Devyani Sharma, Advocate, vice Mr. Ramakant Sharma, Advocate. Surinder Singh, J. The appellant-plaintiff Kishori Lal failed in both the courts below and filed the present Regular Second Appeal. This appeal was admitted on 22.5.1997 on the following substantial questions of law: 1. Whether the tenancy rights with respect to the building standing in the Abadi land can be bequeathed by way of Will, whether such bequest vest right on any such person in whom the will has been made? 2. Whether the person who does not hold any land in village can be held to be holding the Abadi land as owner so as to deny the right of a person who is recorded in Revenue Record to be the owner of the same? 3. whether the plaintiff-appellant is bound by the judgment and decree, Exhibit DX-3 and DX-4, when he was neither a party nor was arrayed as party to the application under order 1 Rule 10 C.P.C.? 4. Whether the learned Lower Appellate Court has erroneously ignored the Memo. Of partition for consideration in coming to the conclusion regarding the title of the plaintiff to the suit property? Whether reporters of the Local Papers are allowed to see the judgment? Yes. - 2 - In fact the learned District Judge, Solan in appeal No.196-S/13 of 1986 while upholding the judgment and decree in case No.316/1 of 1984 decided on 25.9.1987 passed by the learned Senior Sub Judge, Solan dismissing the suit of the plaintiff for possession qua two rooms/ house, was affirmed. Briefly stated, the facts giving rise to the instant appeal are that the dispute is about the two rooms (house) are situated in ‘Abadi deh’ in khata khatauni No.78 in Mauja Parag, Pargana Takaroli, Tehsil and District Solan, in short the ‘disputed property’. According to the case of plaintiff-appellant herein, the disputed property was built up by his father Chet Ram. In the family partition on 20.12.1931 it fell in his share. Since Shri Balia was a tenant of Shri Chet Ram qua some other land, the disputed property was in his occupation. Balia surrendered his tenancy in favour of Chet Ram aforesaid in the year 1937, but he did not vacate the said property. After the death of Balia, it was occupied by his son Bhagtia, who remained in its possession till his death on 11.7.1980. During his life time, Bhagtia executed a will in favour of Bhawani Dutt, but after the death of Bhagtia, his daughter Dropti along with her husband Bishia started residing therein. Thereafter, a dispute arose between Bhawani Dutt and Dropti Devi and Bishia with respect to the disputed property. It is alleged by the plaintiff that he came to know only at that time that it belonged to him. Thus, he filed the suit before the trial court seeking the decree of possession. The defendants-respondents had resisted and contested the suit filed by the plaintiff-appellant on the grounds that Shri Bhagtia was the owner in possession of the disputed property. He had executed his will with respect to the aforesaid disputed property in - 3 - favour of Bhawani Dutt. After the death of Bhagtia, Bhawani Dutt stepped into his shoes. At no point of time the disputed property remained in ownership and possession of either of the plaintiff or his predecessor-in-interest, therefore prayed for the dismissal of the suit. The plaintiff-appellant also filed the replication to the written statement aforesaid wherein he denied the case of the defendants and reasserted of even paras of the plaint. On the pleadings of the parties, the trial court framed the following issues: 1. Whether plaintiff is the owner of the suit premises by virtue of partition between the parties? …OPP 2. Whether deceased Bhagtia was only a licencee in the suit land? …OPP 3. Whether deceased Bhagtia executed a valid will in favour of defendant No.1, if so its effect? …OPD 4. Whether plaintiff is entitled to the decree of possession? …OPD. 5. Relief. On going through the evidence led by the parties, the learned trial court held that the plaintiff was not proved to be the owner of the disputed property on the basis of the partition as alleged. Bhagtia was the owner thereof. He was not a licensee. After the death of Bhagtia Bhawani Datt became the owner of the disputed premises on the basis of the will executed by Bhagtia. On these findings, the suit of the plaintiff was dismissed to which he unsuccessfully assailed it before the learned District Judge in appeal. The learned district Judge after hearing the parties came to the conclusion that the plaintiff did not approach the trial court with clean hand as he had suppressed the material facts from the court, with respect to the - 4 - earlier litigation inter-se Bhawani Dutt at one hand and Dropti Devi and Bishia on the other, wherein the will of Bhagatia in favour of Bhawani Dutt with respect to the disputed rooms was held to be valid by the learned Sub Judge Ist Class, Kandaghat and also the fact that in appeal against the aforesaid decree passed by the Sub Judge, Kandaghat, an appeal was filed by Dropti Devi, the plaintiff had moved an application Ex.P2 under Order 1 Rule 10 CPC to implead him as a party, which was rejected vide order Ex.P3 dated 22.3.1986 as he was not found connected with the disputed property. When Smt. Dropti Devi was unsuccessful to secure the possession, the present suit was filed by the plaintiff Kishori Lal, but he used Dropti Devi against Bhawani Dutt to get its possession. It was also held that the description of the disputed property given in the plaint did not tally with the alleged memo of partition, therefore the appeal was dismissed. I have heard the learned counsel for the parties and have examined the substantial questions of law in the light of the contentions raised. There are certain proved facts on record which are required to be noted. “Abadi Deh” is an inhabited site of a village and is not recorded in the ownership and possession of any particular individual. The plaintiff had staked his claim on the basis of photocopies of memorandum of partition Mark A and B, which have not been proved in accordance with law and the houses mentioned therein do not tally with disputed property. It is an admitted fact that Balia was occupying two rooms in Abadi Deh which were used by him as his residence even before the year 1937. After his death, Bhagtia his son came in its possession. During his life time he executed a will in favour of Bhawani Dutt. After his death, a dispute arose with respect to its possession, thus Bhawani Dutt filed a suit for declaration and permanent injunction in the court of Sub Judge Kandaghat, which was decreed vide judgment DX/3 in his favour and the will of Bhagtia was upheld in favour of Bhawani Datt. The respondents - 5 - were injuncted to cause any interference in the aforesaid property. It is pertinent to note that Kishori Lal had appeared as a witness in favour of Dropti Devi and in his statement Ex.P1 he stated that the house in question belonged to him. When the claim of the Dropti Devi was dismissed, he moved an application Ex.P2 under Order 1 Rule 10 CPC for impleading him as a party in appeal before the District Judge as he was the owner of those rooms in question and he being a necessary party was required to be impleaded for the just decision of the case. Vide order dated 22.3.1986, the learned Additional District Judge dismissed his application and rightly so, as he was not found connected with disputed property. Then he filed the suit for possession before the trial court on the basis of alleged photocopies of memo of partition Mark-A & B, which could not be proved by the plaintiff-appellant in accordance with law. Even the original documents of the photocopies Mark A & B were not produced on record. The suit property embodied in the plaint do not synchronise with the alleged Memos of Partition. As per his own case of the plaintiff, neither he nor his predecessor-in-interest ever remained in its possession and on the top of it he has miserably failed to prove the ownership of the disputed rooms. Therefore, the relief sought by the plaintiff was rightly declined and the learned District Judge has also rightly dismissed his appeal. In view of the judgment passed by the Supreme Court in Anathula Sudhakar v. P Buchi Reddy (Dead) by LRs & others: (2008) 4 SCC 594. The substantial questions of law raised by the plaintiff in his appeal cannot be considered at all in the absence of any averment in the plaint and also in the absence of the issue on that aspect as it do not arise for its determination at all. Thus, this court cannot go into the questions which were not pleaded and the parties were not at issue. Therefore without nursing any doubt in my mind, no interference is warranted or called for in this second appeal, which is accordingly dismissed. - 6 - For the reasons aforesaid, the decree and judgment of learned lower appellate court is hereby affirmed and is accordingly upheld with all the consequences. No other point arises or pressed. In result, the present appeal is dismissed. The interim order passed on 12.7.1996 and confirmed on 10.9.1997 is hereby vacated. Cost on parties. C.M.P. No.591 of 1996. In view of the final disposal of the appeal, the application has become infructuous. (Surinder Singh ) Judge June 5th, 2008. (Pds)