1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 133 of 1996 Date of Decision: 22nd March, 2010 Khatri Ram and others Appellants Versus Shanti Devi and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.Jyotsna Rewal Dua, Advocate. For the respondents: Mr. S.S.Mittal, Sr. Advocate, with Mr. Surinder P. Sharma, Advocate. Sanjay Karol, J. (Oral) The appellants have filed this appeal under Section 100 of the Code of Criminal Procedure, 1973, against the judgment and decree dated 11.3.1996 passed by learned Additional District Judge, Nahan, Sirmaur District, H.P. in Civil Appeal No. 33-N/13 of 1993, whereby the judgment and decree dated 2.3.1993 passed by Sub Judge, Ist Class, Court No.II, Paonta Sahib, in Civil Suit No.101/1 of 1991 was reversed. The appellants are the plaintiffs and the respondents are original defendants and/or their legal heirs but are referred to as the defendants. Whether the reporters of Local Papers are allowed to see the Judgment? 2 The appeal was admitted on the following substantial questions of law:- 1. Whether the findings of the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law? 2. Whether the suit filed by the plaintiff was within the period of limitation? The predecessor-in-interest of the plaintiffs were co-owners of land measuring 110 Bighas, comprised in Khasra No.3239/545, situated in Village Kamroo. Similarly, the defendants were owners of land measuring 4 Bighas 16 Biswas, comprised in Khasra No.776, situated in the same village. In the year 1985, the original owner (Sh.Udia) agreed to orally exchange the defendants’ land measuring 4-16 Bighas with the land in their possession out of 110 Bighas. Entry to the said effect was made in the revenue record vide mutation order dated 29.1.1985. The same is evident from Ext.PX. Undisputedly the plaintiffs had never challenged the said order. The co-sharers of the plaintiffs assailed the same and vide order dated 15.6.1988 entry of mutation was set aside. This is also evident from Ext.PX. However, subsequently, the defendants filed civil suit against the plaintiffs, which was 3 subsequently withdrawn by them. On 2.5.1991 the plaintiffs filed the instant suit praying for the following reliefs:- “It is therefore that the decree of declaration to the effect that the plaintiffs are owner in possession of the land comprised of khasra No.3239/545 of 4 bigha land alongwith other land in the joint khata Khatauni No.120 min/327 and the exchange of this land with the defendants land comprised of khasra No.776 is null and void, illegal and does not effect the rights of the plaintiffs in the same with a consequential relief of permanent injunction restraining the defendants from interfering in the land comprised of khasra No.3239/545, as shown in the tatima by way of extraction of lime stone in the suit land or by throwing the debris in the suit land in the possession of the plaintiffs themselves, through their agents or servants be passed in favour of the plaintiffs and against the defendants with cost of this suit or any other relief which this Hon’ble Court deems fit may also be granted.” The suit was contested by the defendants. Based on the pleadings of the parties, the following issues were framed:- 1. Whether the father of the plaintiff exchanged the land comprised in Khasra No.3239/545/1 measuring 4 bighas with the defendants of their land comprised 4 of Khasra No.776 against the provisions of law, if so its effect? OPD. 2. Whether the mutation of the said exchange was cancelled in the appeal by Sub Divisional Collector vide his order dated 30.1.87, if so its effect? OPD. 3. Whether the plaintiffs are owner in possession of the suit land as alleged? OPD 4. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed? OPD. 5. whether the suit is bad for non-joinder of necessary party? OPD. 6. Whether the suit is not maintainable? OPD. 7. Whether the plaintiff has no locus standi to file the present suit? OPD. 8. Whether the suit is not properly valued for the purposes of court fee and jurisdiction, if so what is correct valuation? OPD 9. Whether the suit is barred by limitation? OPD. 10. Relief. Issues No.1 and 2 were decided affirmatively in favour of the plaintiffs and issues No.3 to 9 were decided in the negative. Importantly while deciding issues No.5 to 9 including issue No.3 the Court held as under:- “During the course of argument the learned counsel for the defendants did not press for these issues. As such, these issues are 5 decided against the defendants as unpressed.” Since the plaintiffs were held not to be in the exclusive possession of the suit land no relief of permanent injunction was granted in their favour. Accordingly, the plaintiffs’ Civil Suit No. 101/1 of 1991, titled as Khatri and others vs. Smt. Narayani and another, was partly decreed in terms of the judgment and decree dated 2.3.1993 to the following effect:- “As per my above discussion and reasons, therefore, the suit is partly decreed to the effect that exchange made by the plaintiffs’ father Lt. Udai Ram in favour of defendants of the land comprised of Khasra No.3239/545, measuring 4 bighas with the land of the defendants comprised of Khasra No.776 measuring 4-19 bighas is set aside being illegal and void.” In the appeal filed by the defendants, the first Appellate Court dismissed the plaintiffs’ suit on the ground that in the absence of any alternate relief the plaintiffs were not entitled for declaration to any legal character or right to property. In my considered view the first Appellate Court has seriously erred while setting aside the findings and the decree passed by the trial Court. 6 Revenue record Ext.P-1 (page 52), Ext.PX (page 55), Ext.PY (page 54), evidently proves the fact that the plaintiffs are co-owners in possession of the suit land and the defendants are co-owner in possession of land measuring 4-16 Bighas, comprised in Khasra No.776. The order of mutation also stood set aside by the appropriate authorities. The plaintiffs’ were seeking injunction with respect to the suit land of which they are the co-owners in possession. The injunction sought was against the third party and not a co-owner. The plaintiffs had not sought a simple declaration. The suit was for declaration to the effect that the exchange is null, void and illegal and that the defendants be restrained from interfering with their possession over the suit land. The Courts below seriously erred in not correctly appreciating the record while arriving at their conclusion. Limitation is a mixed question of fact and law. No doubt the defendants have taken the plea of limitation and got the issue framed, but, however, during the course of hearing the same was not pressed. In the appeal also the defendants did not take this as a ground. Undisputedly the plaintiffs had filed the suit within a period of three years from the date of withdrawal of the suit filed by the defendants. 7 In Dr. Mahesh Chand Sharma vs. Smt. Raj Kumari Sharma and others, AIR 1996 SC 869, the Apex Court has held as under:- “The plea of limitation raised by the defendant-appellant cannot be upheld for more than one reason. The reasons are the following: (a) Among the issues framed in the suit. Issue No.5 pertains to the plea of limitation put forward by Defendant Nos. 2 to 5. The issue runs thus: “Whether the suit is within time? On this issue, the learned single Judges (Trial Judge) recorded a finding in favour of the plaintiff. He found the suit within limitation. The decision on the above issue was not contested by the parties before the Division Bench. The Division Bench has expressly recorded that ‘the decisions on the above issues (Issues 1,2,3,4,5 and 6) are not contested by the parties in this appeal and, therefore, the findings of the learned single Judge are hereby affirmed”. Once this is so, it is not open to the third defendant – appellant in these appeals to seek to re-agitate the said plea. We cannot allow him to do so. A party who abandons a particular plea at a particular stage cannot be allowed to re-agitate in appeal……” In view of the aforesaid, it cannot be said that the plaintiffs’ suit is barred by limitation. The substantial questions of law are answered accordingly. 8 In view of the foregoing reasons, the appeal is accepted and the judgment of the first appellate Court is set aside. 22nd March, 2010 (Sanjay Karol), (C) Judge.