1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 345 of 1996 Decided on: 28.5.2008 ___________________________________________________________ Mohan Singh ……Appellant Versus Nand Ram …….Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant Mr. Vinay Thakur, Advocate, vice Mr. T. R. Chandel, Advocate. For the respondent Mr G. D. Verma, Senior Advocate, with Mr. Romesh Verma, Advocate. _________________________________________________________ Surinder Singh, J . (Oral) This appeal has been directed by the appellant, hereinafter called the ‘plaintiff’, feeling aggrieved by the judgment and decree passed by the learned first Appellate Court in Civil Appeal No.68-S/13 of 1991, whereby it had upheld dismissal of the suit of the plaintiff. Instant appeal was admitted on 27.12.1996 without framing of questions of law, but during the course of arguments, learned counsel for the appellant pressed the following substantial questions of law: Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 1. Whether the order passed by the learned S.D.M.Chopal dated 13.8.87 is illegal and without any legal and correct factual basis? 2. Whether the learned courts below committed an error of law in ignoring the application, under order 41 Rule 27 C.P.C. and not allowing it when the documents annexed with the application showed that there are substantial questions of law for allowing the said application, which titled the scales in favour of the plaintiff? In brief, the facts giving rise to the present appeal are that: both the parties i.e. the plaintiff and defendant-respondent were allotted ‘nautor’ in revenue estate Majhotli in Tehsil Chopal District Shimla. Plaintiff was allotted the land in Khasra No. 39/32 in red/56 khasra No. 1443/1377, 1444/1377 and 1445/1377 measuring 10 bigha 8 biswa. Mutation was sanctioned in favour of the plaintiff on 31.8.1978, thereafter, he reclaimed the said land. The defendant was allotted the land comprised in Khasra No. 1409/1377/3 measuring 11 bigha 2 biswa in revenue 3 estate Majhotli on 12.7.1974. Mutation was sanctioned in his favour on 9.6.1982. It is alleged by the plaintiff that the land allotted to the defendant was about two kilometers away from the land allotted to him but the defendant in collusion with the Field Revenue Agency manipulated the review of nautor land and on recommendation the Sub Divisional Collector vide his order dated 13.8.1987 allowed the review and changed the field map of nautor of the defendant so as to overlap the land allotted to the plaintiff. Thus, under the garb of changed map, the defendant started causing interference in the ownership and possession of the land allotted to the plaintiff, hereinafter referred to as the suit land. On the above allegations, the plaintiff had filed a suit before the trial court for declaration to the effect that the review order of the Sub Divisional Collector dated 13.8.1987 is void and illegal and contravenes the provisions of nautor rules and also sought decree for injunction qua the suit land. The suit was resisted and contested on the ground that the field map of the land allotted to defendant, under the nautor rules, was revised by the revenue officials, as it was not prepared in accordance with the procedure and 4 that defendant was given the possession of the land comprised in Khasra No.1409/1377/3 measuring 11 bigha 1 biswa. The defendant never interfered in the suit land belonging to the plaintiff in any manner. He disputed the maintainability of the suit vis-à-vis took the point of limitation and also questioned the locus-standi of the plaintiff to institute the suit. Further according to the defendant, the local investigation carried out by the Tehsildar by the order of the court, on the request of parties also confirmed the contention raised by the defendant which was not disputed by the plaintiff. On the pleadings of the parties, the following issues ere framed by the trial court: 1. Whether plaintiff is owner in possession of the suit land, as alleged? O.P.P 2. Whether plaintiff is entitled for relief of permanent injunction, as prayed? O.P.P 3. Whether order dated 13.8.87 of S.D.M. Chopal is illegal and void as alleged? O.P.P 4. Whether suit is bad for non- joinder of necessary parties? OPD 5. Whether plaintiff has no locus standi to file the suit? OPD 5 6. Whether suit is not maintainable? OPP 7. Whether suit is barred by limitation? OPD 8. Whether report of Local Commissioner is liable to be set aside, as alleged? OPP 9. Relief. The learned trial court held the plaintiff, owner in possession of the land and also returned the finding to the effect that the defendant was not proved to have interfered in the suit land as alleged and the plaintiff also failed to prove that the order of Sub Divisional Collector for correcting Tatima was wrong; report of the local commissioner was held to be correct thus it was affirmed, consequently, the suit filed by the plaintiff was dismissed. In appeal before the learned District Judge the plaintiff assailed the judgment and decree, passed by the learned trial court, on the grounds that issue wise findings of the learned trial court against the plaintiff were wrong and further that when the plaintiff was found in possession of the suit land, decree as prayed for should have been passed. Further that the report of the local commissioner was misconceived and 6 reliance placed by the learned trial court on the said report was totally misplaced. During the pendency of the appeal before the learned District Judge, an application under Order 41 Rule 27 C.P.C. was also moved by the plaintiff to place on record the copy of roznamcha Kargujari dated 6.7.1974 of Patwar Circle, according to which the Field Kanungo is alleged to have verified only 25 files of nautor of different revenue estates except that of Majhotli, by this plaintiff intended to show that initially map prepared in favour of the defendant with respect to the land allotted to him was not prepared by the revenue officials after visiting the spot. The application was contested and resisted by the defendant. According to him, the Field Kanungo had visited the spot and rightly prepared the map of the land allotted to him. The application was declined and the appeal was dismissed on merits on the ground that the relief sought cannot be granted as the plaintiff had failed to prove the interference. Thus, this regular second appeal has been filed in this court, assailing the judgment and decree passed by both the courts below. I have heard the learned counsel for the parties and have examined the evidence on record. 7 As a matter of fact, the plaintiff is seeking declaration of the order passed by the Sub Divisional Collector dated 13.8.1987 being illegal and void by filing a suit, without seeking any remedy under the H. P. Nautor Rules, which provides complete mechanism of appeal, revision and review. On 10.2.1987 the defendant had moved an application to correct the Tatima of the Nautor land allotted to him, in accordance with the Tatima, prepared by the Kanungo on the spot. His application for correction was allowed by the Sub Divisional Collector vide order Ex.P-5 dated 13.8.1987. It is not understood as to how the aforesaid order of the Collector has effected the allotment of the suit land. The contention of the plaintiff that the order of the Collector resulted in overlapping of the land allotted to the defendant is ill-founded in view of the statement of Sh. D. S. Negi, Tehsildar, who was appointed as Local Commissioner with the consent of the parties, during the pendency of the suit before filing of the written statement by the defendant. He had inspected the spot and prepared Tatima of the land of both the parties. According to him, in between the land of the parties to the suit, there is a Government land. Therefore, in these circumstances, when the lands of the 8 plaintiff and defendant are not abutting each- other as there is land of the Government in between both the lands of the parties, therefore, there is no question of over lapping as alleged, more so it is for the plaintiff to prove its case in accordance with law. He cannot harp upon the evidence of the defendant. In the present case, the plaintiff has failed to prove any interference by the defendant in any manner, therefore, in my opinion the relief was rightly declined to him by both the courts below. Further it is in evidence that the field map was corrected as per order passed by the Sub Divisional Collector, which was incorporated in mutation dated 9.6.1982. The order of the Sub Divisional Collector is Ex.P-5, which was relied upon in carrying out change in the field map in the mutation aforesaid. For the arguments sake, if there is some illegality in correcting the field map of nautor granted in favour of the defendant in the mutation, it is not understood as to how the plaintiff could have been granted the relief sought for in absence of any proof of alleged over-lapping. At the time of inspection by the local commissioner, the plaintiff deliberately absented himself and did not file any objection promptly assailing his report dated 9 30.6.89 but it was only after the court had invited the objections. He filed the objections in the month of September, 1989 which had no bearing on the matter. Further the roznamcha Kargujari, which was sought to be placed and proved before the first Appellate court under order 41 rule 27 C.P.C. is also of no relevance and consequence, as the said entries in the rojnamcha has no bearing on the merits of the case. The Tatima which was initially prepared on 6.7.1994 was not relied upon by the defendant. According to his case, the possession of nautor handed over to him was different from the Tatima prepared initially, therefore, he had sought the correction of that Tatima alone, without any change in khasra numbers or the area. His contention was found to be correct by Field Staff of the revenue department. From the controversy interse the parties it appears that both of them wants to grab the Government land falling between the suit land and the land allotted to the defendant, which cannot be permitted at all. I find no error in deciding the application, under order 41 Rule 27 CPC by the first Appellate court. Thus, I am in agreement with the contention raised by the learned counsel for the respondent, that the substantial question of law 10 sought to be raised in this second appeal are not borne out from the record nor it could tilt scales in favour of the plaintiff in absence of the interference shown to have been caused by the defendant in the suit land. No other point urged. Therefore, the appeal is dismissed. Parties to bear their own costs. May 28,2008 (Surinder Singh),J. (D)