IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 332 of 1999. Judgement reserved on: 31.3.2010. Date of decision: 3.5.2010. Lauhali Devi & ors. ….. Appellants. Vs. Shayama & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. N.S.Shandil,Advocate. For the Respondents : Mr. Ashwani K. Sharma, Advocate, for respondent No.1. Kuldip Singh, Judge. The appellants are successors of Nand Lal and have assailed judgement, decree dated 15.3.1999 passed by learned District Judge, Mandi in Civil Appeal No. 96/1995 reversing the judgement, decree dated 28.9.1995 passed by learned Sub Judge Ist Class, Jogindernagar in Civil Suit No. 20/1987. 2. Nand Lal had filed a suit for permanent prohibitory injunction against the respondents and one Chuhra regarding the land comprising in khata khatauni Nos. 129min/ 183min, khasra No. 96 measuring 2-9-19 bighas, village Jhalwan, Tehsil Jogindernagar. Nand Lal projected the case that his father Santu had bequeathed the suit property in his favour. It was the case of Nand Lal that Santu had Whether the reporters of the local papers may be allowed to see the Judgment? …2… three sons namely Nand Lal, respondents No. 1 & 2 i.e. Shyama and Kalu. Nand Lal had also pleaded that respondents No. 1, 2 earlier dispossessed him from the suit land and he filed a suit against them which was compromised on 24.2.1986 and on the basis of compromise he was put in possession of the suit land. 3. On 15.11.1986 respondents No. 1 and 2 again interfered in his possession on land comprised in khasra Nos. 96/1 and 96/2, kitas 2, measuring 1-4-19 bighas. In these circumstances, suit was filed. It has been pleaded that respondents No. 3 and 4 and one Chuhara were in possession of the suit land alongwith Nand Lal, therefore, they were impleaded as proforma defendants. Nand Lal prayed for decree of permanent prohibitory injunction etc. against respondents No. 1, 2 from interfering in his possession on suit land measuring 1-4-19 bighas. 4. The suit was contested by respondent No.1 by filing written statement and he took preliminary objection of maintainability on the ground that previous suit was withdrawn by Nand Lal, respondent No. 1 is in actual possession of the suit land. The objection of res judicata and estoppel were also taken. On merits, the will of Santu in favour of Nand Lal was denied and so also the possession of Nand Lal on the suit land. It was pleaded that respondent No. 1 is in peaceful, actual and hostile possession of the suit land for the last more than 12 years and he has become owner of the suit land by way of adverse possession. It was denied that suit was compromised. …3… 5. Nand Lal filed replication and he denied the case set up by respondent No.1 and reiterated his case. Chuhra died and his name was deleted by trial court vide order dated 23.5.1987. The suit was dismissed by the learned Sub Judge on 28.6.1988. Nand Lal filed C.A. No. 115/88, which was allowed on 28.4.1995 by the learned Addl. District Judge, framed additional issue No. 5-A and remanded the case to trial court for recording its decision afresh on all issues after affording opportunity to both the parties to lead evidence. 6. On the pleadings of the parties following issues were framed including additional issue No. 5-A framed by the learned Addl. District Judge:- 1 Whether the plaintiff is owner in possession of the suit land, as alleged? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the suit is barred by res judicata? OPD. 4. Whether the will in question is vitiated by undue influence, fraud and coercion? OPD 5. Whether the defendants have become owners of the suit land by way of adverse possession? OPD 5A. Whether after the compromise in previous civil suit No. 44/84 decided on 24.2.1986 any portion of the suit land was relinquished in favour of the plaintiff by the defendants as alleged in para-3 of the plaint? If so its effect? OPP. 6. Relief. 7. The issue No. 1 was decided partly in affirmative and issue No. 5-A in affirmative, the issues No. 2 to 5 were answered in negative and the suit was decreed by learned Sub Judge on …4… 28.9.1995. The judgement and decree dated 28.9.1995 were assailed by respondent No. 1 in Civil Appeal No. 96/95 which was allowed by the learned District Judge on 15.3.1999. The judgement and decree dated 28.9.1995 passed by learned Sub Judge was set-aside and suit filed by Nand Lal was dismissed. In these circumstances, the appellants who are successors of Nand Lal filed second appeal against the judgement, decree dated 15.3.1999, which has been admitted on the following substantial questions of law:- 1. Whether in view of the admission of defendant regarding validity of statement of plaintiff, Ex. D-4, the possession of plaintiff over the suit land stand proved? 2. Whether Ex. D-4, operates as estoppel against the defendant and the defendant is estopped from denying the factum of handing over of possession of suit land to plaintiff? 3. Whether the relief of permanent prohibitory injunction could be denied to plaintiff, especially when the plea of defendant regarding adverse possession is not proved and defendant has no right, title and interest in the same? 8. I have heard Mr. N.S.Shandil, learned counsel for the appellants and Mr. Ashwani Kumar Sharma, learned counsel for respondent No. 1 and have also gone through the record. Mr. Shandil has submitted that learned lower appellate court has misconstrued and misinterpreted Ex. D-4 statement dated 24.2.1986 of Nand Lal in earlier suit. It has been submitted that Ex. D-4 statement operates estoppel against respondent No. 1 from denying the factum of handing over the possession of suit land to appellants. …5… The appellants are entitled to relief of permanent prohibitory injunction when plea of respondent No. 1 regarding adverse possession has not been proved nor he has established right, title and interest on the suit land. 9. The substantial questions of law No.1 to 3 are interconnected, therefore, all of them are being taken up collectively for disposal. The learned District Judge in the impugned judgement has observed that execution of will by father of Shyama and Nand Lal in favour of Nand Lal was not disputed. The questions raised before him were that suit is barred under Order 23 Rule 3 CPC and Nand Lal was not in possession of the suit land, therefore the suit for injunction could not have been decreed. The learned District Judge has held that neither cause of action nor the relief claimed in the present suit is the same as in the previous suit, therefore, the suit is maintainable. The learned District Judge, however, held that Nand Lal was not in possession of the suit land on the date of filing the suit or thereafter, Shyama is in possession of the suit land. Therefore, suit for injunction is not maintainable. 10. Ex. D 2 is the copy of plaint of earlier suit filed by Nand Lal against Shyama and Kalu regarding land comprised in khata khatauni No. 129/83, khasra No. 96. It was pleaded in the plaint Ex. D-2 that defendants took forcible possession of land comprised in khasra Nos. 96/1, 96/2, 96/3 and 96/4 on 30.5.1984 and dispossessed Nand Lal. The said suit was dismissed as withdrawn vide order dated 24.2.1986 Ex. D-1 on the basis of statement of Nand Lal. Statement of Shyama was also recorded separately. …6… Ex. D-4 dated 24.2.1986 is the statement of Nand Lal wherein he has stated that if Shyama would keep the suit land vacant for one crop and would not raise any crop thereon then he shall have no objection. Thereafter he would execute the gift deed of his share in favour of Shyama, which was accepted by him. In these circumstances, he withdrew his suit and requested for its dismissal. 11. The present suit is for land measuring 1-4-19 bighas comprised in khasra Nos. 96/1 and 96/2. These khasra numbers were also involved in the previous suit filed by Nand Lal against Shyama and Kalu, which was for possession and Nand Lal withdrew that suit on 24.2.1986 on the basis of his statement, as noticed above. There is nothing on record that after 24.2.1986 the suit land came in possession of Nand Lal or his successors. The learned counsel for the appellants has failed to point out any reliable, cogent material on record to show that after 24.2.1986 the suit land came in possession of appellants or Nand Lal. Ex. D-4 nowhere proves the possession of the appellants or Nand Lal on the suit land, Ex. D-4 rather proves the possession of Shyama on the suit land. Similarly, Ex. D-4 does not operate estoppel against Shyama to establish his possession on the suit land. The appellants or Nand Lal were not found in possession of suit land, therefore, the suit for permanent prohibitory injunction was rightly dismissed by the learned District Judge. 12. The learned District Judge has rightly appreciated the material on record. The perversity in the impugned judgement has not been pointed out. The learned counsel for the appellants has confined his submissions with respect to the relief of permanent …7… prohibitory injunction to the appellants which cannot be granted to appellants once they or their predecessor Nand Lal were not found in possession of the suit land. The substantial questions of law No. 1 to 3 are decided against the appellants. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. May 3, 2010. ( Kuldip Singh ), (Hem) Judge.