IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 289 of 2001 Judgment reserved on: 14.9.2011 Date of Decision : November 23, 2011 Bhimi Ram & Ors. ..Appellants Versus: Khekh Ram & Ors. …Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the appellants: Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate For respondent No.1 : Mr. Shrawan Dogra, Advocate. Sanjay Karol, J. (Oral) This is the defendants regular second appeal, filed under Section 100 of the Code of Civil Procedure, 1908. 2. Plaintiff Khekh Ram (respondent herein) filed a suit claiming himself to be owner in possession of the suit land along with proforma defendants/respondents. Pursuant to a family partition plaintiff was put in exclusive possession of the same. However contesting defendants (hereinafter referred to as ‘the appellants’) started interfering with the same. Hence, he prayed for a decree of permanent prohibitory injunction. Proforma defendants did not contest but appellants contested the suit pleading that Sh. Manu who was their predecessor-in-interest - 2 - had encroached upon the suit land, thus ousting the original owner i.e. the State of Himachal Pradesh and the Jagirdar Rai Bhagwant Singh. On the suit land, Sh. Manu planted apple trees and after his death, appellants inherited his estate and entered into possession thereof. Since then their possession is open, peaceful, continuous and uninterrupted to the notice and knowledge of the plaintiffs, proforma defendants as well as the State. 3. Based on the pleadings of the parties, trial Court framed the following issues. 1. Whether the plaintiff is entitled to the relief of injunction as prayed? ……OPP. 2. Whether the suit is within limitation? …OPP. 3. Whether the suit is not maintainable? …OPD. 4. Whether plaintiff is estopped from filing the present suit? ……OPD. 5. Whether the defendants no. 1 to 5 are in adverse possession of the suit land as claimed? …..OPD.1 to 5 6. Whether Mohinder Singh has no power to grant nautor land as alleged? ….OPD 7. Relief. 4. Issues No.1 & 5 were decided in favour of the appellants whereas issue No.2 was decided in favour of the plaintiffs. Issue No.3 was also decided in favour of the appellants and issues No. 4 & 6 were decided in the negative. As such, plaintiff’s Civil Suit No.122/99 was dismissed in terms of - 3 - judgment and decree dated 30.11.2000 passed by Senior Sub Judge, L&S at Kullu. 5. Aggrieved thereof, plaintiff filed an appeal before the District Judge, Kullu which was registered as Civil Appeal No. 30/2001 titled as Khekh Ram vs. Bhimi Ram & Ors. The same stands decided in terms of impugned judgment and decree dated 17.5.2001 wherein judgment and decree of the trial Court was reversed and plaintiff’s suit stands decreed to the following effect: “22. In view of my findings on the aforesaid point, appeal allowed and suit of the plaintiff accordingly decreed restraining defendants perpetually from causing any interference in ownership and possession of the plaintiff over the suit land. However, parties in peculiar circumstances of the case are left to bear their own costs. Record of the trial Court alongwith a copy of this judgment be sent back. File after completion be consigned to record room.” 6. The appeal was admitted on the following substantial questions of law:- “2) Whether in the absence of any specific and cogent findings rendered by the Lower Appellate Court discarding the findings of the Trial Court that there are no act of interference proved by the Plaintiff-Respondent, has not the Lower Appellate Court exceeded its jurisdiction in granting decree of injunction when the defendant-Appellants have been proved to be in possession thereof? - 4 - 4) Whether the impugned Judgment and Decree passed by the Lower Appellate Court is vitiated on account of non-consideration of Issue No.6?” Is not the Judgment and Decree of the Lower Appellate Court perverse in ignoring to consider such aspect of the matter which has also not been considered by the Trial Court which has material bearing on the decision of the case? 7. It is urged by Mr. Bhupender Gupta, learned Senior Counsel for the appellants that plaintiff’s title to the suit land is defective for the reason that any grant made by Rai Bhagwant Singh in favour of the plaintiff is hit by the provisions of the Punjab Resumption of Jagirs Act 1957 and, as such, plaintiff cannot be said to be owner of the suit land. It is further urged that the Courts below erred in relying upon the revenue entries (jamabandi for the year 1996-97) (Ext.P-1) plaintiff to be owner in possession of the suit land. According to Mr. Gupta, such entries are not conclusive proof of title and reliance thereupon, for the said purpose, is thus misconceived in law. 8. On the other hand, Mr. Shrawan Dogra, learned counsel for respondent No.1 has invited my attention to para-15 of the judgment delivered by the trial Court to contend that even his findings of fact, in favour of the appellants, are not based on evidence led by the parties but mere assumption and presumptions of the Presiding Officer. It is further urged that after appreciating the entire evidence, oral and documentary, the lower Appellate Court has taken a probable and plausible - 5 - view with regard to the plaintiff’s possession and this finding of fact cannot be set aside merely for the reason that this Court can come to another conclusion. It is also urged that in any event there is no perversity in the findings arrived at by the lower Appellate Court. 9. Noticeably plaintiff had filed a simple suit for injunction based on his possession. Issues No. 4 & 6 were got specifically framed by the appellants but no evidence was led or arguments addressed in support thereof. In this regard, findings of trial Court read as under: “Issues No. 4 & 6 18. No arguments nor any evidence was led in support of these issues. Accordingly, both these issues are decided in the negative.” 10. The same have attained finality. None challenged the same. As such, it would not be open for the appellants to now urge that plaintiff’s title to the suit premises is defective or that plaintiff was estopped from filing the present suit. 11. In Bruce vs. Silva Raj & Ors. 1987 (Supp) SCC 161, it has been held that the injunction can be obtained on the basis of possession. 12. In M. Kallappa Setty vs. M. V. Lakshminarayana Rao, (1973) 2 SCC 358, the Apex Court has held that the plaintiff can on the strength of his possession resist interference from persons who have on better title than himself to the suit - 6 - property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. 13. The Apex Court in Ramji Rai & Anr. vs. Jagdish Mallah & Anr. (2007) 14 SCC 200 has held that “in the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights. The present suit is only for permanent injunction and, therefore, the lower appellate court should have, on the facts and circumstances of this case, confined itself to its dismissal only on the ground that the appellants have failed to show that they were in possession. This has been done but the declaration that the appellants are not the owners, was not necessary”. 14. In Rajni Tandon vs. Dulal Ranjan Ghosh Dastidar & Anr. (2009) 14 SCC 782, the Apex Court has held that findings of fact with regard to the party not acquiring right, title or - 7 - interest in the suit premises by way of adverse possession, not challenged before the Appellate Authority would be final. 15. I have carefully examined the record and more particularly the evidence led by the parties. Both the parties have examined two witnesses i.e. Sh. Khekh Ram (PW-1), Sh. Pune Ram (PW-2), Sh. Bhimi Ram (DW-1) & Sh. Ram Lal (DW- 2). Testimony of PW-2 has been discarded by the Courts below. Trial Court itself had recorded that this witness had no knowledge of the suit land. Similarly, DW-2 cannot be said to be trustworthy witness apart from the fact that he is a close relative of the appellants. Even the trial Court has held that this witness does not appear to be well conversant with the appellants possession over the suit land. His evidence also appears to be hearsay as he was informed by the appellants about their possession over the suit land since the year 1950. 16. I find the statement of PW-1 to be more convincing and inspiring confidence. In no unequivocal terms, he has proved himself to be exclusive possession of the suit land which fact stands corroborated by the revenue entries (Ext.P-1), which were duly proved and exhibited by him on record. Entries pertain to 1996-97 i.e. period prior to the date of institution of the suit. He has specifically denied possession of Sh. Manu or his successor-in-interest over the suit land. Defendants plea for adverse possession stands rejected by the Courts below. Entries in the revenue record have not been assailed by them either. No - 8 - material has been produced on record to rebut the presumption of truth attached to the revenue entries. It was open for the defendants to have led evidence, oral or otherwise, to this effect. But it was not so done. Defendants plea that their predecessor- in-interest had dispossessed the state and planted trees also does not appear to be true. 17. DW-1 has in fact taken a stand which is contrary to the one taken in the pleadings. On oath, he states that “the land was purchased by my father in the month of Chaitra, 1950”. No such document has been placed on record. 18. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa (2000) 6 SCC 120, the Apex Court has held that it is not permissible for the High Court to decide the second appeal by reappreciating the evidence as if it was deciding the first appeal unless it comes to the conclusion that the findings recorded by the court below were perverse, which view has been reiterated in Bharatha Matha & Anr. vs. R. Vijaya Renganathan & Ors. (2010) 11 SCC 483. 19. The Lower Appellate Court has assigned sufficient reasons while disagreeing with the findings returned by the trial Court. It cannot be said that the Court exceeded its jurisdiction in decreeing the suit. Record does not reveal that the findings arrived at are perverse, based on erroneous appreciation of facts or provisions of law. - 9 - 20. All questions of law already stand settled. As such, in my considered view, no question of law much less substantial question of law arises for consideration in the present appeal and the same is accordingly dismissed. ( Sanjay Karol ), Judge. November 23, 2011 (rana)