IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.261 of 2000 Date of decision : August 16, 2010 Sat Parkash and others …Appellants. Versus Murari Lal and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Petitioners : Pt. Om Parkash, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate. Deepak Gupta, J (Oral) This Regular Second Appeal, filed by the defendants-appellants, was admitted on the following substantial questions of law: “1. Whether the Civil Court could go into the question of vestment of shamlat land in the State under H.P. Village Common Lands Vesting and Utilisation Act? 2. Whether the suit of the plaintiff as constituted is bad for non-joinder of necessary parties?” 2. This appeal is being decided only on the second substantial question of law and, therefore, I do not intend to decide the first substantial question of law. 3. The undisputed facts are that the plaintiff filed a suit for declaration claiming that he is owner in possession Whether reporters of the local papers may be allowed to see the judgment? Yes. …2… of 16 Kanals 10 Marlas of land in village Nari, Tehsil Amb, District Una, H.P. In the alternative, it was prayed that a decree for possession be passed. The case set up by the plaintiff was that one Mohan son of Saudagar was owner in possession of land measuring 19 Kanals 7 Marlas in the village in question, and he sold this land alongwith his rights in the Shamlat deh to one Shiv Nandan. Narain Dass, the father of the plaintiff, instituted a suit for possession by preemption of all proprietary land and Shamlat land sold to Shiv Nandan and this suit was decreed by the Senior Sub Judge, Hoshiarpur and, therefore, the father of the plaintiff became owner of the land. This land was willed by the father of the plaintiff to the original plaintiff Amar Chand. The plaintiff further urged that the entries showing the State to be owner of the land, through Gram Panchayat, and the defendant to be the tenants at will of the said land had been wrongly recorded by the revenue authorities. According to the plaintiff, the Shamlat land, which had been sold in his favour, could not have vested in the Gram Panchayat and subsequently in the State. Therefore, the creation of any tenancy by the State or Gram Panchayat was void. 4. Both the Courts below have held that the suit is not maintainable for want of necessary parties. The State, admittedly, is recorded as owner of the suit land. No decree can be passed in favour of the plaintiff affecting the …3… rights of the State. Therefore, the State of Himachal Pradesh was a necessary and proper party to the proceedings. There is nothing wrong in this part of the judgment. 5. The learned Courts below, however, also held that the plaintiff was in possession of the suit property. This finding of fact rendered by the learned trial Court was upheld by the learned lower Appellate Court and the cross- objection filed by the defendants challenging this finding was dismissed. This is a pure question of fact. Since the learned Courts below held the plaintiff to be in possession, they passed a decree restraining the defendants from interfering in the possession of the plaintiff in the suit land and also directed that entry in the revenue record, showing the defendants as tenants, is liable to be corrected. The learned lower Appellate Court was justified in holding that the plaintiff is entitled to protect his possession. Even if the person in possession is not an owner he cannot be dispossessed, except by due process of law. The defendants have not been found to be in possession of the suit land but correction of revenue entries can only be made on the application of the true owner and not on the application of the person in possession. Therefore, the second part of the decree passed by the learned lower Appellate Court is set aside. The appeal is, therefore, allowed only to the extent that the entry in the revenue …4… record cannot be corrected at the instance of the plaintiff. However, the plaintiff being in possession of the suit land, the defendants are restrained from interfering in the possession of the plaintiff over the land in dispute. Appeal stands disposed of accordingly. August 16, 2010(sd) ( Deepak Gupta ), J