IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 235 of 2001 Date of decision: 23.3. 2011. Biasan Devi …Appellant. Versus Inder Paul Singh and another ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Ajay Kumar, Advocate For the respondents : Mr. Anand Sharma, Advocate. Kuldip Singh , Judge ( Oral ) This appeal has been directed against judgment, decree dated 22.2.2001 passed by learned District Judge, Kullu in Civil Appeal No. 55 of 2000 affirming judgment, decree dated 31.3.22000 passed by learned Senior Sub Judge, Kullu in Civil Suit No. 200 of 1994. The appellant was plaintiff. 2. The brief facts of the case are that appellant claimed that her father Kripu was in possession of land measuring 2 biswas which was owned by the provincial government. In the year 1960 her father constructed double storeyed building consisting of two shops on the ground floor. On the death of Kripu the suit property was inherited by 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 appellant’s two brothers Ram Asre, Joginder Singh, mother Parsinu Devi and appellant, mutation was accordingly sanctioned. In January, 1994 her brother Joginder Singh fell seriously ill and was admitted in District Hospital, Bilaspur, he died on 2.10.1994. The appellant during this period remained out of Kullu to look after her ailing brother Joginder Singh at Bilaspur. The appellant remained at Bilaspur upto 5.10.1994 and thereafter she had gone to Hamirpur. On return from Hamirpur on 5.11.1994 to Kullu, she found that respondents had dismantled back portion of one shop situated on the suit land and they were raising a new house without any right, title or interest. In these circumstances, the suit was filed. 3. The suit was contested by respondents by filing written statement, they conceded the possession of Kripu father of appellant over the suit land as tenant at one time. It was claimed that respondent No.2 was in possession of Northern part of the shop on the suit land measuring 18 ½ feet along National Highway to the extent of one biswa for the last more than 27 years. On that land, single storeyed structure was constructed by respondent No.2 about 25 years ago. The possession was delivered by Kripu himself after receipt of ` 5000/- from respondent No.2. Kripu had two sons, widow and daughter, who inherited his share in equal shares. Joginder Singh, son and Parsinu Devi, widow vide affidavit dated 24.2.1994 admitted possession of respondent No.2 on the Northern portion of the suit land. The remaining part of the suit property measuring one biswa on Southern side also 18 ½ feet along National Highway having single storeyed slate-roofed house remained with Ram Asre son of Kripu. The portion of Southern side is possessed by 3 appellant, her brother Ram Asre. In 1993 respondent No.2, appellant and Ram Asre demolished their respective single storeyed old structures and reconstructed RCC buildings on their respective portions. They have even single joint partition wall between the structure of appellant etc. and respondent No.2. It has been submitted that respondent No.2, appellant and Ram Asre are possessing their respective shares in the building. In October, 1994 appellant and Ram Asre raised first floor on their portion of the property but subsequently when respondent No.2 raised the second storey on his portion of the property at that time appellant and Ram Asre objected and did not allow him to raise construction. This gave rise to the dispute. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether plaintiff is entitled to the relief of injunction, as prayed for? OPP 2. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 3. Whether the suit is not maintainable? OPD 4. Whether plaintiff has no locus-standi to file the present suit? OPD 5. Whether plaintiff is estopped to file the present suit by her act and conduct? OPD 6. Relief. The issues No.1 and 4 were answered in negative, whereas issues No. 2, 3, and 5 were answered in affirmative and the suit was dismissed by the learned Senior Sub Judge on 31.3.2000. The learned District Judge on 22.2.2001 upheld the judgment, decree dated 31.3.2000 passed by the learned trial Court, hence second appeal, which has been admitted on following substantial questions of law:- 4 1. Whether the alleged admission contained in the affidavit Ex.DW-2/A shown to have been sworn by the brother and mother of the plaintiff is binding o the rights of the plaintiff? 2. Whether the Courts below have discarded and ignored the material evidence and have based their decision on immaterial and irrelevant and inadmissible evidence and there has been gross misreading and misconstruction of evidence led by the parties? 5. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the learned District Judge has erred in not properly considering the affidavit Ex.DW-2/A, the material evidence has been ignored and irrelevant evidence has been considered by the learned District Judge while approving the judgment, decree dated 31.3.2000 passed by the learned Senior Sub Judge. The learned counsel for the respondents has supported the impugned judgment, decree and has submitted that no fault can be found with the judgment, decree dated 22.2.2001 which is based upon proper appreciation of evidence. 6. The substantial questions of law referred to above can be conveniently considered collectively and, therefore, both substantial questions of law are taken up together. Ex.DW-2/A is the affidavit dated 24.2.1994 of Joginder Singh, son and Parsinu Devi, widow of Kripu. This affidavit has been attested by Executive Magistrate and deponents have been identified by one Ranjeet Singh Jaswal, Advocate. In affidavit Ex.DW-2/A, it has been stated that khasra No.2196/2185 measuring 2 biswas owned by provincial government is in possession of deponents. It has also been stated in the affidavit that deponents have handed over 5 the area measuring one biswa Northern part of the land which is in their possession in favour of Sardar Piara Singh. It has also been stated in the affidavit that on spot Sardar Piara Singh is now in possession. The two Courts below have relied Ex.DW-2/A and other material on record in recording the finding that respondent No.2 is in possession of Northern part of the suit land as admitted by Joginder Singh and Parsinu Devi in the affidavit Ex.DW-2/A. 7. The suit is for permanent prohibitory injunction and mandatory injunction. The respondent No.2 is in settled possession of Northern portion of the suit land to the extent of one biswa as recorded in Ex.DW-2/A. In these circumstances, the appellant is not entitled to permanent prohibitory injunction. The appellant has also not identified the portion on which she is in possession after excluding the portion of the suit property which is admittedly in possession of respondent No.2 as per Ex.DW-2/A. 8. There is no prayer for possession nor there is any specific prayer for mandatory injunction for handing over the suit property by respondent No.2 in favour of the appellant. The prayer for mandatory injunction is only for dismantling the construction raised by respondent No.2 but even for that purpose the construction raised by respondent No.2 has not been identified. The appellant has failed to make out any case how the two Courts below have recorded wrong finding and which part of the inadmissible evidence has been relied for dismissing the suit of the appellant. There is no merit in the appeal. The substantial questions of law No.1 and 2 are decided against the appellant. 9. No other point was urged. 6 10. The result of the above discussion, the appeal fails and is accordingly dismissed. No costs. ( Kuldip Singh ), Judge. March 23, 2011 (GR)