IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 90 of 1997. Judgment reserved on 27.2.2008. Date of Decision: 4th March, 2008. Puran Chand …..Appellant Versus Tarsem Lal and others …..Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Petitioner: Mr. N.K. Thakur, Advocate. For the Respondents: Mr. Om Parkash Sharma, Advocate, for respondent Nos. 1 and 2. Dev Darshan Sud, Judge. This is the defendants’ appeal against the concurrent findings of the two courts below holding the respondent-plaintiff to be in settled possession of the suit land and decreeing his suit granting him permanent prohibitory injunction against the appellant- defendants. The claim put forth by the plaintiff and as noticed by the learned trial court is:- 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - “Sadhu Ram instituted this suit for permanent injunction restraining the defendants from interfering in his possession over land comprised in khasra No. 858, 1025, 1028, 1071, 1072, 1073 measuring 0-13-28 hects. Situated in village Abheypur Tehsil Amb, District Una, H.P. The brief facts as averred in the plaint are that the suit property was in possession of Rama son of Makoroo as tenant at will and on his death entire property devolved upon the plaintiff along with Gurdass Ram and Sant Ram. The plaintiff and male lineal decedents of Rama remained in possession and had sown wheat crop. The defendants being utter strangers have no right, title and interest. They thereafter, threatened to cut and remove trees and damage wheat crop for the last one month. They were requested to refrain from doing so but they refused. Hence this suit for permanent injunction. The learned trial court as also the learned appellate Court, held that the plaintiff-respondent was in settled possession and that he was not successor of Rama or had succeeded to his estate. The learned District Judge, affirming the findings held:- “15. On the basis of the oral evidence pl aced on record by the parties it can only be held that the plaintiff is in possession of the suit land, and defendant is not in possession and the findings of Ld. Trial court are correct that the plaintiff had failed to prove that he was successor of Rama or that he had succeeded to his estate and, therefore, the plaintiff was entitled to protect his possession as against others. The findings of ld. Trial court holding that plaintiff is in possession of the suit land and is - 3 - entitled to the relief of injunction and other findings are based upon correction appreciation of evidence and law and these do not call for any interference by this court. This point is accordingly decided as against the appellant and in favour of the respondent.” The defendants claim to the suit land on the basis that Rama was succeeded by Bir Singh, who sold his entire property along with Shamlat to defendant Puran Chand, was not accepted. At this stage it may be noticed that both learned trial court and the appellate court had noticed that the proceedings for correction of the revenue record were pending before the “L.R.O. Amb”. This appeal was admitted by this court on all the substantial questions of law as framed and filed with the appeal. These questions are:- 1. Whether a stranger without impleading the true owner can get a decree for injunction against the other? 2. What is the effect of non-impleading the State of Himachal Pradesh as party to the suit, who is the recorded owner and in the absence of it whether a person can seek the relief of injunction? 3. Whether a person without establishing his legal right to succeed the estate of non-occupancy tenant can maintain the suit? 4. What is the effect after the death of non-occupancy tenant? 5. Whether the impugned judgments are vitiated on account of mis-interpretation and mis-construction of the provisions of law, more particularly a tenant dying without living a male lenial descendent? - 4 - Before attempting to answer any of these questions, it may be observed that according to the findings of both the courts below defendants’ possessory rights on the basis as pleaded by them, has not been established on the record. It has also been concurrently held that the plaintiff has been unable to prove that he is successor –in-interest of the tenant who was in occupation of the suit land. It is also an established fact that the plaintiff has been held to be in settled possession of the land. In these circumstances, it would be difficult to hold that the defendant is aggrieved by the decree. If he is not in possession, which fact has been affirmed by both the courts below, he cannot claim violation of any legal right. The registered document of sale, on the basis of which the appellant-defendant relies and based his claim, has not been placed on the record of the case. Learned counsel appearing for the appellant submits that it is settled proposition of law that in absence of true owner being impleaded either in the case, no decree can be granted in his favour. He has placed reliance on the decision of the Calcutta High Court in Bagal Tanti and others v. Ram Ranjan Laha and others AIR 1976 Calcutta 13. He also relies upon the judgment of the High Court of Calcutta in M/s Roy and Co. and another v. Sm. Nani Bal Dey and others AIR 1979 Calcutta 50 holding that the plaintiff must succeed on the strength of his own case and cannot rely upon the weaknesses of the defence set up by the defendant. - 5 - I have given my careful consideration to the submissions made by the learned counsel appearing for the appellant. The entire record was scrutinized by this court in order to ascertain as to whether there was any possessory right or title with the defendant. The record does not support the case of the defendant. In any event the learned trial court has held and rightly so that a person in possession can protect it from any other person except true owner. In Karthiyayani Amma, v. Govindan AIR 1980 Kelala 224 the High Court has held that a person in possession of an immoveable property can protect his possession against the dispossession by force. The learned trial court has noticed and rightly so the other judgments supporting this proposition. The questions of law are answered on the established facts and not as a mere academic exercise. The record discloses that both the learned courts below have concurrently held the defendant to be out of possession and has no right founded on possessory title. Such findings as arrived at are sustained from the record and I have been unable to find anything perverse in the conclusion arrived at by both the courts below or unsupported by the evidence on the record. This is not a suit for declaration which would require the presence of the State for adjudication. Coupled with this fact, that the proceedings for correction of the revenue record are pending, as noticed by both the courts below, there is no merit in the submission put forth by the learned counsel appearing for the appellant. In - 6 - these circumstances it becomes difficult to hold that the case requires adjudication on the points as formulated with the appeal. This appeal is therefore, dismissed. There shall be no order as to costs. 4th March, 2008. (Dev Darshan Sud), (cm) Judge.