IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 21 of 1996 Date of decision: 26.8.2008. Bundu Khan ….Appellant Versus State of H.P. and another. ….Respondents _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the Appellant : Shri S.D. Gill, Advocate. For the Respondent No.1: Ms. Ruma Kaushik, Addl. Advocate General. For the Respondent No.2: Shri Vivekanand Negi, Advocate. __________________________________________________________ Dev Darshan Sud, J. This is the plaintiff’s second appeal against the concurrent findings of the two Courts below dismissing the suit of the plaintiff praying for a decree of declaration that the plaintiff is owner in possession of suit land and that possession of defendant No.2 as per revenue record is null and void and not binding on the interest of the plaintiff and declaration that the defendants do not have any right, title or interest in the suit land. The learned trial Court tried the suit on seven issues. The crucial and vital issues are as to whether the plaintiff is owner in possession of the suit land; the entries in the revenue record showing ownership and possession of Municipal Committee, defendant No.2, are illegal, null and void and whether the suit is barred by limitation. Issues No. 1 and 2 were taken up for discussion together and issue No.3 was not pressed by defendant. In support of the contention that plaintiff is owner in possession of the suit land, he appeared as PW1 and stated that the suit land was purchased by 1 Whether reports of Local Papers may be allowed to see the judgment? 2 his grand father Biddoo who took possession of the land which always remained with him and he is his successor in interest. He testified that the houses built on the suit land were given by his grand father to the erstwhile Sirmour State on rent and after they became dilapidated, they were pulled down by him. Thereafter, a wooden structure was raised on this land. Proceedings under Section 145 of the Code of Criminal Procedure were instituted before the Sub Divisional Magistrate, Nahan and the land was attached under Section 146 of the Code. The plaintiff had averred and pleaded that the suit land had been carved out from Khasra No. 13 (old). The report of the Local Commissioner which did not establish the identity of the land was also challenged by him. The defendants produced their evidence as DW1 Parmanand Vice President of Municipal Committee, Nahan and DW2 Rajpal who is working in Animal Husbandry Department. These two witnesses have stated that there is a milk booth of Animal Husbandry Department on the suit land which has been in possession of this Department. DW3 Liyakat Ali, who was working as Junior Engineer in Municipal Committee, Nahan, proved the Patta Ext.PW3/A stating that this land had been sold to the Animal Husbandry Department by Municipal Committee, Nahan. The other witnesses were unanimous that it was Animal Husbandry Department which was in possession of this land. The case of the defendants was that the Collector Settlement after the mutation of revenue entries has held that suit land was a part of Khasra No.1 (old) and not Khasra No.13. The report of Local Commissioner was clear that the suit land had been carved out from Khasra No.1 (old) and was not a part of Khasra No.13. The suit was accordingly dismissed. In appeal, the learned Appellate Court re-appreciated the entire evidence and dismissed the appeal as being without any merit. 3 The appeal was admitted on three substantial questions of law which are as under:- 1. Whether the learned lower appellate Court has erred in ignoring the report of Local Commissioner, Shri Rajinder Parkash and this was materially affected the case of plaintiff? 2. Whether the lower appellate Court has misconstrued, misinterpreted the pleadings, and evidence on record and the view taken by learned lower appellate Court is not possible on the basis of material on record? 3. Whether the land alleged to have been sold by Municipal Committee, Nahan, in favour of Veterinary Department, Gian Chand has not been identified? The first question can be disposed of conveniently. The learned Appellant Court rightly holds that a fresh Local Commissioner could not have been appointed unless the report of Local Commissioner as appointed by the trial Court was set aside. That aspect having been adjudicated against the appellant, the report accepted, there was no question of local Commissioner being appointed again. In any event, the Court proceeded to decide that the fresh report is of no importance because the plaintiff had not been able to establish and prove from the record that the suit land remained in the ownership and possession of the plaintiff- appellant. The Court holds that the identity of the suit land having not been established, there was no question of the report proving the ownership of the plaintiff-appellant. The case regarding the land and buildings having been rented to the erstwhile Sirmour State was found to be bereft of any substance as there was no material on record to establish the relationship of landlord and tenant. Both the learned Courts below having found in favour of the defendants and against the appellant, the findings of the fact arrived at by the Courts below cannot be disturbed. The learned trial Court as a fact holds that 4 identity of the suit land has not been established and the report of Local Commissioner goes against the appellant, which report has been accepted. The learned Appellate Court rightly affirmed this finding on re-appreciation of the evidence by holding that the plaintiff has been unable to establish the location of the land. The reasoning of the learned Appellate Court cannot be faulted with more especially when it is based on sound principle of law that it is the title and identity which has to be established first before a decree of declaration can be granted. This question is answered against the appellant by holding that no error has been committed by the learned Appellate Court. The second and third questions can be taken up for consideration together. These questions have been framed in a manner which would require re- reading of the entire pleadings and evidence of the parties and re-open settled issues. In any event, that exercise has been undertaken while deciding the first question linked to the first two issues before the trial Court. I do not find that either the learned trial Court or the Appellate Court has erred in arriving at a conclusive finding that the plaintiff is not the owner in possession of the suit land. These two questions are answered against the appellant. This appeal is accordingly dismissed. There shall be no order as to costs. August 26, 2008 (Dev Darshan Sud) (ms) Judge