IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.170 of 2001. Date of decision: 01.10.2008. Karam Chand @ Karma & Others ….Appellants Versus Tulsi Ram & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents:Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. This appeal has been filed against the judgment and decree of the two Courts below dismissing the suit of the plaintiffs, appellants herein, and allowing the counter claim filed by the defendants with costs. The plaintiffs instituted a suit against the defendants for permanent prohibitory injunction on the pleadings that they were owners in possession of the suit land measuring 7-10-0 Bighas, comprised in Khasra No.7331/5337 of Khata Khatauni No.1638/2283 as depicted in Jamabandi for the year 1993-94 of Phati Shilihar Kothi Kotkandi Tehsil and District Kullu, H.P. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 It was pleaded that the defendants- respondents Tulsi Ram, Shiba and Ram Diayal etc. were the owners in possession of land comprised in Khasra No.5337, adjacent to the southern boundary of the land of the plaintiff. The plaintiffs plead that they had applied for demarcation and thereafter constructed a breast wall (Danga). In their absence, the defendants starting plucking tomatoes etc. from the suit land and claimed their ownership to the land. They caused damage to the crop and breast wall (Danga) etc. The defendants in reply to the suit, have pleaded that the plaintiffs are not in possession of the suit land and have no right, title or interest to claim any relief as prayed for. The revenue entries showing the plaintiffs to be the owners in possession of the land are incorrect and that it is the defendants who are in possession of the entire suit land. Their specific case is that the entire suit land in Khasra No.5337, Khata Khatauni No.1033/1782 was owned by one Durga Dutt and this land was in possession of Budhu, father of defendant No.1 as a tenant at will. With the enforcement of the H.P. Tenancy and Land Reforms Act, Budhu became the owner of the suit land by operation of the statutory provisions of the Act. Plaintiff Gulaba, father of the predecessor in interest of the plaintiffs, manipulated the revenue record in 1978-79 and in connivance with the revenue officials got the land measuring 20-13 Bighas split up into two min 3 Khasras and the name of the tenant Budhu was omitted from the column of possession of land measuring 7-10 Bighas. On the settled issued, the learned trial Court dismissed the suit decreeing the counter claim filed by the defendants. On the two issues framed, the learned Court found that the plaintiffs had been unable to establilsh their claim of ownership on the suit land. The plaintiffs’ appeal was dismissed by the learned District Judge. This appeal was admitted on three substantial questions of law, namely:- “1. Whether there has been mis-leading and mis-construction of the evidence by the Courts below? 2. Whether the counter claim of the defendants-respondents was barred by time? 3. Whether the counter claim of the defendants-respondents is bad for non- joinder of necessary parties and no declaration sought for could have been granted?” Question No.1: Question No.1 is taken up for determination first. Learned counsel appearing for the appellants has placed reliance on the evidence on record, namely, Ex.PA, Jamabandi for the year 1993-94, regarding the ownership and possession of the plaintiffs Gur Dass, Karam Chand and Tek Chand of this portion of land being in their possession. Mutation No.5333 recorded by the Patwari stating that the plaintiffs have become owners of 7 Bighas and 10 Biswas i.e. the suit land. There is 4 no evidence on the record to show any connivance of the revenue authorities with the plaintiffs in manipulating the record. This plea is taken very often in revenue/civil proceedings but not substantiated. It can, therefore, be ignored. Learned counsel for the plaintiffs-appellants submits that the learned Courts below having completely ignored these entries and the documents showing the possession of the plaintiffs herein and have gone wrong in not interpreting these documents correctly and the Courts are wrong in ignoring this revenue record. Learned counsel appearing for the defendants submits that revenue entries do not constitute proof of title. If that be so, even the defendants have been unable to establish their title and base their claim only on the basis of the revenue record. This record can be looked into for the purposes of possession which stands established in favour of the plaintiffs. In this view of the matter, I hold that the judgment of both the Courts below is vitiated. They could not have ignored these two documents Ex.PA and Ex.PB as also the mutation entries contained therein showing the possession of the plaintiffs and the two Jamabandies showing their ownership. Questions No.2 and 3: These two questions may be taken up for discussion together. Admittedly, the owner of the land 5 Durga Dutt was not impleaded as one of the parties. He, being the owner of the land, was a necessary party to have stated as to whether the defendants were the tenants of the entire portion of the land or only a part of it. How and under what circumstances he was not impleaded, is not clear from the record or the pleadings of the plaintiffs. In this view of the matter, the counter claim was bad for non-joinder of necessary parties and I hold accordingly. On question No.2, I do not find any ground for substantiating that the counter claim filed by the respondents is barred by time. This question is, therefore, answered against the appellants. In the totality of the facts and circumstances of the case, this appeal is accepted. A decree for injunction is granted in favour of the plaintiffs-appellants and against the respondents for the suit land measuring 7 Bighas and 10 Biswas as prayed for. The respondents are restrained by way of a permanent prohibitory injunction in interfering with the possession of the plaintiffs of the suit land measuring 7-10 Bighas as described in the plaint. There shall be no order as to costs. October 1, 2008. (Dev Darshan Sud) (aks) Judge.