IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 418 of 2008 Date of decision: 12.10.2011 ________________________________________________________________ Zehar Singh. .....Appellant. Versus Raghu Bar (dead) through LRs & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the appellant: Mr. B.B. Vaid, Advocate with Mr. Jitender Kumar, Advocate. For the respondents: Ms. Ritta Goswami, Advocate with Ms. Babrita Chauhan, Advocate. V.K. Sharma, J. (Oral). The present regular second appeal is directed against the judgment and decree dated 22.05.2008, passed by the learned District Judge, Kinnaur at Rampur Bushahr, in Civil Appeal No. 13 of 2007, Zehar Singh vs. Raghu Bar & others whereby the judgment and decree dated 29.03.2007 of the learned Civil Judge (Sr. Division), Kinnaur at Reckong Peo, H.P., in Civil suit No. 43-1 of 2006, Raghu Bar vs. Zehar Singh, decreeing the suit for possession and perpetual prohibitory injunction filed by the respondents herein as plaintiffs against the appellant herein being the defendant, have been affirmed. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... 2. The dispute between the parties concerns the land bearing khata No. 82, khatauni No. 184, khasra Nos. 337, 338 and 339, measuring 0-01-32 hects., situate in up muhal Goonag, mauza Kothi, Tehsil Kalpa, District Kinnaur, H.P., which shall hereinafter be referred to as the suit land. 3. Briefly stated facts of the case are that the defendant had filed Civil Suit No. 36-1 of 2004, titled Zehar Singh vs. Raghubar and others in the court of the learned Civil Judge (Sr. Division) Kinnaur at Reckong Peo, H.P., seeking a declaration that he has acquired title to the suit land through adverse possession. This suit was partly decreed vide judgment and decree dated 30.03.2006, Ex. PW-1/A, in the following terms: “11. In view of my findings on issues above, the suit of the plaintiff is partly decreed qua the relief of injunction whereas the relief of declaration is declined. The defendants No. 1 to 4 are restrained from interfering with the possession of the plaintiff over the suit land and structure thereon in any manner till he is dis-possessed from it in accordance with law. In the circumstances of the case, the parties are left to bear their own costs. The decree sheet be prepared accordingly.” 4. Admittedly, judgment dated 30.03.2006, Ex. PW-1/A, attained finality as the same was not challenged either by the plaintiff therein, who is appellant before this Court nor by the defendants therein, who are respondents herein, meaning thereby that the findings returned vide issue No. 1 in that suit to the effect that the defendant had failed to establish the plea of acquisition of title to the suit by way of adverse possession, became final inter se the parties and would thus operate as res judicata. ...3... 5. It was thereafter that on the basis of findings returned vide judgment dated 30.03.2006, Ex. PW-1/A, the suit for possession and consequential relief for perpetual prohibitory injunction, out of which the present appeal has arisen, was filed by the respondents herein against the appellant herein. 6 For the sake of convenience, the parties shall hereinafter be referred to by their status as in the learned trial court, that is, plaintiffs and defendant, respectively. 7. The suit was decreed vide judgment dated 29.03.2007, in the following terms: “As per my findings on issues above, suit of the plaintikffs for possession of land comprised in khasra No. 337, 338 and 339 area measuring 0-01-32 hc situated in up muhal Goonag, mauza kothi the. Kalpa, Distt. Kinnaur, with structure standing over it, is decreed against the defendant. There is no order as to costs. Decree sheet be prepared accordingly. “ 8. Being aggrieved, the defendant carried the matter in appeal to the learned First Appellate Court, but without success. It is how, he is before this Court in the present regular second appeal. The appeal has been admitted on the following substantial questions of law: “1. Whether the judgment of the learned Appellate Court can be sustained when it refuses the prayer of the appellant herein for amendment of written statement? 2. Whether Ext. PW-1/A has been mis appreciated by the Court below?” 9. I have heard the learned counsel for the parties and gone through the record. ...4... 10. Insofar as the first substantial question of law is concerned, suffice it to say that the application for amendment of written statement filed by the defendant was disposed of by the learned First Appellate Court by a detailed and reasoned order dated 15.03.2008. By that amendment, the defendant at the stage of the first appeal sought amendment of the written statement to incorporate the plea of adverse possession. As already noticed, such plea raised by him had already been finally heard and decided against him vide the aforesaid judgment dated 30.03.2006, Ex. PW-1/A, and the same having attained finality, could not have been allowed to be raised by way of an amendment in the written statement and that too at a belated stage when the matter was in first appeal before the learned District Judge. Thus, to my view, disposal of the application for amendment of written statement by the learned First Appellate Court vide order dated 15.03.2008 would not in any way go to vitiate the impugned judgment and decree dated 22.05.2008, passed by that court in first appeal. The substantial question of law is decided accordingly. 11. Now while adverting to the second substantial question of law, it would be seen that vide judgment dated 30.03.2006, Ex. PW-1/A, the defendant was found to be in possession of the suit land and the plaintiffs were restrained from causing any interference with the same in any manner till he was dispossessed there from in accordance with law. As already noticed, judgment dated 30.03.2006, Ex. PW-1/A, had attained finality. It was on the basis of ...5... this judgment that the suit, giving rise to filing of the present appeal, was filed by the plaintiffs. In such situation, the defendant has not been able to show as to how and in what manner judgment dated 30.03.2006, Ex. PW-1/A, has been mis-appreciated by the learned courts below. To to the contrary, the said judgment has rather been appreciated and construed by both the learned courts below in its right perspective. The substantial question of law is decided accordingly. 12. In addition to the above substantial questions of law, the learned counsel for the defendant submits that yet another substantial question of law with regard to lack of cause of action in favour of the plaintiffs also arises in this appeal and was in fact formulated as substantial question of law No. 1 at page 7 of the paper book, which though did not find favour with this Court at the time of admission of the appeal vide order dated 08.01.2009, yet the same can very well be considered by this Court under proviso to Section 100 CPC. Though the legal position in this respect cannot at all be disputed that the Court is always within its powers to formulate any additional question of law arising out of the materials on record, yet on a bare perusal of the plaint, it is manifestly clear that the plaintiffs had based their suit on the aforesaid judgment dated 30.03.2006, Ex. PW-1/A, and had accordingly set up the following averments with regard to cause of action having arisen in their favour vide para 6 of the plaint: ...6... “6. That the cause of action arose to the plaintiffs against the defendant on dated 30-03-06 on which day the Ld. Civil Judge Senior Division Kinnaur at Reckong Peo has decided the case no. 36-1 of 2004 of the defendant and the plaintiffs are entitled to recover the actual physical possession of the suit land and its structure from the defendant because the defendant is an encroacher and is in unlawful possession.” 13. In view of the above, no additional substantial question of law arises in this appeal as canvassed by the learned counsel for the defendant. 14. In view of the above, the appeal is dismissed being without any merit, leaving the parties to bear their own costs throughout. (V.K. Sharma) Judge 12th October, 2011 (virender)