IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 362 of 1999. Judgment reserved on : 4.6.2009 Date of decision : 22.6.2009. Bishma Devi and another ..Appellants. Vs Chatru Ram and another ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellants : Mr. K.D.Sood, Advocate with Mr. Balwant Singh, Advocate. For the respondents : Mr. Ajay Kumar , Advocate for respondent No.1. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 2.8.1999 passed by District Judge, Shimla in Civil Appeal No. 53-S/13 of 1996 partly accepting the appeal against the judgment, decree dated 8.8.1996 passed by Sub Judge 1st Class, Court No.1, Rohru in Civil Suit No. 26/1 of 1991. 2. The facts, in brief, are that respondent No.2 had filed a suit for possession regarding land comprised in khasra Nos. 60, 224, khata Khatauni No. 68 min/142, Chak Anu, Tehsil Rohru. The respondent No.1 was impleaded principal defendant No.1 whereas appellants were impleaded as proforma defendants 2, 3 in the suit. The further case of respondent No.2 in the suit was that she along with appellants is owner 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.yes 2 of the suit land. The respondent No.1 taking undue advantage of the illiteracy of respondent No.2 and appellants recently took possession of the suit land and in collusion with field staff got recorded the possession over the suit land. It was pleaded that the appellants could not be impleaded as plaintiffs in the suit and as such, they were impleaded proforma respondents in the suit. The respondent No.2 in the suit prayed decree for possession of the suit land in her favour. 3. The suit was contested by respondent No.1 and he took preliminary objections of non-joinder of necessary parties, estoppel and adverse possession on the suit land for last 30 years. On merits, it was denied that respondent No.1 took possession of the suit land during recent settlement. It was pleaded that respondent No.1 had constructed his house on khasra No.60 and khasra No.224/ 2 is also in his possession for the last more than 30 years. The respondent No.1 had denied ownership and possession of respondent No.2 and appellants on the suit land. The respondent No.1 denied the case of respondent No.2. At the time of conferring proprietary rights on respondent No.2 and appellants the suit land was included by mistake as respondent No.2 and appellants never remained in possession of suit land. The respondent No.1 pleaded adverse possession on the suit land. The replication was filed by respondent No.2 wherein stand which was taken in plaint was re-asserted. On the pleadings of the parties the following issues were framed:- 1. Whether plaintiff has been dispossessed from the suit land in an illegal manner by the defendant, as alleged? OPP 2. Whether defendant has become owner of the suit land by adverse possession as alleged? OPD 3. Whether suit is bad for non-joinder of necessary parties, as alleged? OPD 3 4. Whether plaintiff is estopped to file present suit, as alleged in para No.2 of preliminary objection? OPD 5. Whether plaintiff is entitled for the relief of possession qua suit land, as alleged? OPP. 6. Relief. The Sub Judge decided issues No.1 and 5 in affirmative and issues No.2, 3 and 4 in negative and the suit was decreed as per operative part of the judgment. The respondent No. 1 filed the appeal and the District Judge on 2.8.1999 partly accepted the appeal reversing the decree of possession regarding khasra No.60 and suit for possession of respondent No.2 to that extent was dismissed. The appeal as regards decree for possession of khasra No. 224 in favour of respondent No.2 and appellants was dismissed, hence second appeal by proforma defendants which has been admitted on the following substantial questions of law:- 1. Whether the judgment of the District Judge is vitiated on account of misreading and misconstruing oral and documentary evidence particularly, the Misal Hakiat Ex. P-1, Khasra Girdawari Ex.P-16 and Jamabandi for the year 1975-76, Ex. P-RA and the statements of PW-1 Kaushalya Devi, DW-1 Chatru and DW-4 Bharat Singh? 2. Whether the report of the Local Commissioner was liable to be rejected being contrary to the instructions of the High Court Rules and Orders and the Financial Commissioner relating to the demarcation in respect of boundary disputes, especially when the demarcation was carried out without the assistance of Latha and fixing permanent points? 4. The substantial questions of law No.1 and 2 can be conveniently disposed of collectively, therefore, both the substantial questions of law are taken up for disposal together. The respondent 4 No.2 in the plaint has pleaded that she and appellants are the owners of the suit land, appellants could not be joined as plaintiffs in the suit and, therefore, they have been impleaded as proforma defendants. There is no averment in the plaint that the suit has been filed for the benefit of appellants also. The prayer in the plaint also confines to decree for possession in favour of the plaintiff. The respondent No.2 had filed an application under Order 1 Rule 10 read with Section 151 C.P.C. for impleading Smt. Bishma Devi as plaintiff in the suit. This application was dismissed by the trial Court on 6.8.1993. The suit was decreed by the trial Court on 8.8.1996, no doubt decree was passed in favour of respondent No.2 as well as appellants. The trial Court decreed the suit in favour of appellants in absence of any prayer of respondent No.2 nor were appellants impleaded as plaintiffs in the suit. The trial Court granted relief to appellants beyond the scope of the suit. 5. The appellants were proforma defendants and merely for this reason and nothing more relief could not have been granted by trial Court in favour of appellants more particularly when there is no averment in the plaint that suit was filed by respondent No.2 for the benefit of appellants nor respondent No.2 made a prayer in the plaint for decreeing the suit in favour of appellants also. The respondent No.1 filed appeal against the decree dated 8.8.1996 and the lower Appellate Court partly allowed the appeal of respondent No.1. The respondent No.2 who had filed the suit accepted the decree of the lower appellate Court. The respondent No.2 has neither filed cross appeal against the impugned decree nor she has filed cross-objections in the present appeal. The appellants were never having the position of the plaintiff or analogous to plaintiff in the suit nor there was any 5 counter claim on their behalf in the suit, therefore, they have no locus standi to come in second appeal. The two Courts below have not looked into the matter whether any relief could be granted to appellants who were not having the position of the plaintiff in the suit. It is made clear that in a given situation decree can be passed in favour of a plaintiff and proforma defendant but for that foundation in the plaint is necessary. In the present case for granting relief to appellants, there is neither foundation in the plaint nor in the relief. The appellants have no locus standi to file the appeal when respondent No.2 and respondent No.1 who were plaintiff and principal defendant respectively in the suit have accepted the impugned decree. In light of above discussion, no separate finding is necessary on aforesaid substantial questions of law. 6. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. June 22, 2009. (GR)