IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RSA. NO. 525 of 1998 with CMP No.963 of 2008 Judgment Reserved on: 9.7.2009 Date of Decision: 13.7.2009 Devi Ram …Appellant Versus Sania and another …… Respondents Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? Yes For the appellant: : Mr. Vinay Thakur, Advocate. For the respondents: : Mr. J.S. Verma, vice Mr. Onkar Jairath, counsel for respondent No.1 Mr. Anshul Bansal, Addl. Advocate General with Mr, R.P. Singh, Assistant Advocate General for respondent No.2. Kuldip Singh, J This appeal has been directed against the judgment, decree dated 10.8.1998, passed by learned District Judge, Shimla in Civil Appeal No.5-S/13 of 1997, affirming judgment, decree dated 30.11.1996 passed by learned Sub Judge Ist Class, Theog in Case No.119/1 of 90. 2. The facts in brief are that respondent No.1 had filed a suit _____________________________ whether reporters of Local Papers may be allowed to see the Judgment?Yes 2 for permanent prohibitory injunction against appellant and proforma respondent No.2 on the pleaded case that proforma respondent No.2 is owner of land comprised in khasra No.637/884/215, khewat khatauni No.99/156, measuring 8-12 bighas, situated in Chak Mool Matiana vide jamabandi 1986-87. The residents of village Mool Matiana are in possession thereof, who are using the suit land as Charand for grazing their cattle. The respondent No.1 has constructed a house on his own land comprised in khasra No.695/215 measuring 4-1 bighas which is adjacent to the suit land. The respondent No.1 has passage through the suit land. The appellant had tried to encroach the suit land for his exclusive use and also tried to dig a portion thereof with a purpose to make fields. The appellant had also threatened to block the path leading to the adjoining land of respondent No.1. In these circumstances, the suit was filed. 3. The suit was contested by the appellant and in his written statement he has pleaded that he is exclusive owner in possession of the suit land for the last more than 32 years, he has brought 13 bishwas land out of the suit land under cultivation and the rest of the suit land was lying Banjar. The entries in the revenue record pertaining to the suit land showing it to be Charand are wrong and illegal. The respondent No.1 had made a report to the patwari and encroachment proceedings are likely to be initiated by the revenue officer against the appellant. The path claimed by respondent No.1 from the suit land to the adjoining land has been denied. It was denied that appellant has caused interference. The proforma 3 respondent No.2 has also filed a written statement. It was pleaded that proforma respondent No.2 is the exclusive owner in possession of the suit land, the residents of Mool Matiana have no right to graze their cattle on the suit land. It was also alleged that residents of Mool Matiana are enjoying the suit land as common Charand. The appellant as well as proforma respondent No.2 had prayed for dismissal of the suit. 4. In replication, the respondent No.1 reiterated his case. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff including estate right holders have rights over the suit land, as alleged? OPP 2. Whether the defendant is interfering with the rights of the plaintiff and other Estate right Holders over the suit land, as alleged? OPP 3. Whether the defendant No.1 is in exclusive possession over the suit land, as alleged? OPD-1 4. Whether the suit is not maintainable? OPD-II 5. Whether the suit is bad for non-service of the notice under section 80 C.P.C.? OPD-II 6. Relief The issues No.1,2 were answered in affirmative and issues No.3 to 5 in negative and the suit was dismissed on 30.11.1996. The lower Appellate Court has affirmed the judgment, decree of the trial court in appeal which was decided on 10.8.1998. In these circumstances the appellant who was 4 defendant No.1 has filed the present appeal which has been admitted on following substantial questions of law:- 1. Whether the suit was maintainable in view of the provisions of section 171 of HPLR.Act? 2. Whether any case was made out for the application of Order 1 rule 8 C.P.C. or whether it could be legally said to be a representative suit, in view of the evidence produced by the plaintiff? 5. Heard and perused the record. Learned counsel for the appellant has submitted that no case was made out by respondent No.1 to sue appellant in representative capacity under Order 1 rule 8 CPC. The application under Order 1 rule 8 CPC was allowed on 19.5.1993 and the respondent No.1 was allowed to sue appellant in representative capacity. He has submitted that the Courts below have not properly appreciated that the suit is not maintainable under Section 171 of the Himachal Pradesh Land Revenue Act. In the appeal, the appellant has filed an application under Order 41 Rule 27 read with Section 151 CPC being CMP No.963 of 2008 for additional evidence. This application was ordered to be considered at the time of hearing of the appeal. In the application the appellant has submitted that patwari Halqua Mool Matiana be called as witness to prove the tatima dated 25.9.2008 and has also prayed for a direction to the patwari to prepare a tatima. It has also been prayed in the application that the patwari may be asked to produce jamabandi of Mool Matiana, Tehsil Theog. The learned counsel appearing 5 on behalf of respondent No.1 has supported the impugned judgment, decree. 6. In the application under Order 41 Rule 27 read with Section 151 CPC, the appellant has prayed for proving tatima dated 25.9.2008 and simultaneously a prayer has been made for a direction to the patwari to prepare a tatima. The prayer for production of jamabandi of Mool Matiana is vague. It has not been indicated jamabandi of which year of Mool Matiana is required to be produced. The appeal has been admitted on the substantial questions of law noted above. The question involved in the appeal is regarding the maintainability of the suit under Section 171 of the Himachal Pradesh Land Revenue Act and that the suit could not have been treated as a representative suit against appellant. In view of substantial questions of law on which appeal has been admitted tatima dated 25.9.2008 is not necessary in order to adjudicate the real controversy between the parties. More over nothing has been indicated in the application why the tatima now sought to be proved on record was not got earlier prepared when the evidence was led in the trial court. There is no explanation why even in the Ist appellate court such application was not filed. The appellant has failed to make out any case for additional evidence and resultantly CMP No.963 of 2008 is dismissed. 7. The Section 171 of the Himachal Pradesh Land Revenue Act excludes the jurisdiction of Civil Courts in matters 6 which are within the jurisdiction of Revenue Officer. The respondent No.1 has filed the suit for permanent prohibitory injunction. The Revenue Officer under Section 171 of the Himachal Pradesh Land Revenue Act has no jurisdiction to give relief of permanent prohibitory injunction. It is the case of the appellant that respondent No.1 had made a report vide rapat Ex.D-1 to the patwari and encroachment file has been prepared against appellant. The appellant intends to convey that in view of intended ejectment proceedings against him the suit is not maintainable under Section 171 of the Himachal Pradesh Land Revenue Act, therefore, the Civil Court has no jurisdiction to try the suit. The contention raised on behalf of the appellant is noticed only to be rejected. No case for lack of jurisdiction is made out. Revenue Officer has no jurisdiction to grant relief prayed by respondent No.1 in the suit. The suit is not barred under Section 171 of the Himachal Pradesh Land Revenue Act. Hence, substantial question of Law No.1 is decided against the appellant. 8. It has been submitted that Order 1 rule 8 C.P.C. to sue appellant in representative capacity is not applicable in the present case. The substantial question of law No.2 does not emerge from the case set up by the appellant. There is no issue regarding the controversy which now appellant has raised by way of substantial question of law No.2. In the grounds of appeal in the lower Appellate Court nothing has been said about the 7 applicability of Order 1 rule 8 CPC. In the second appeal also it has only been stated that application under Order 1 rule 10 (sic) CPC was incompetent and was illegally allowed. The persons mentioned in the list of estate right holders under Order 1 rule 8CPC who have been sued through appellant have raised no grievance. The respondent No.1 has right to approach Civil Court to protect his own civil right against appellant, the substantial question of law No.2 is decided against the appellant. 9. The two Courts below have properly appreciated the material on record in decreeing the suit. The substantial questions of law on which the appeal was admitted have limited scope. No case for interference has been made out. Resultantly, appeal fails and is accordingly dismissed. ( Kuldip Singh) Judge July 13, 2009 (sks)