IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 98 of 2004 Date of decision: 24.11.2010 Krishana and others …Petitioners. Versus Shiv Lal and another …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. B.K.Malhotra, Advocate. For the respondent No.1: Mr. G.R.Palsra, Advocate. For respondent No.2: Mr. Rajesh Mandhotra, Dy. A.G. Deepak Gupta, J. (Oral) 1. This petition has been filed under Article 227 of the Constitution of India. In my view this petition is maintainable since not only is the value of the decree less than 25,000/- but also because the petitioners are only challenging the findings of the learned Court below and no decree has been passed against them. This petition by the defendant is directed against the findings given on issue No.6 by the learned lower Appellate Court. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 2. Briefly stated the facts of the case are that Shiv Lal, plaintiff, filed a suit against the present petitioner and the State of Himachal Pradesh. For the purpose of this petition the facts relevant are that the plaintiff claimed that he had a house which opened out towards Khasra Nos. 1386/1 and 1380/1. The plaintiff claimed that there was a passage going through Khasra Nos. 1386/1 and 1380/1. He also claimed other rights of easement and prayed that the construction being raised by the petitioners was without approval of the plan from the Municipal Committee and had been raised by encroaching upon Khasra No.1386/1. Defendants No. 1 to 4 contested and resisted the suit and claimed that land comprised in Khasra No. 1386/1 is neither a road nor the State of Himachal Pradesh is the owner of the land. According to the defendants Khasra No. 1386/1 was owned and possessed by the defendants and is in their possession. The State of H.P. claimed that Khasra No.1386/1 is recorded as Jaya Safed and is owned by the State Government. On the pleadings of the parties the learned trial Court framed various 3 issues. Issue No.6 is relevant for our purpose and read as follows:- “6. Whether the Khasra No.1386/1 is owned and possessed by the State Government? OPP.” 3. The learned trial Court dismissed the suit of the plaintiff and while giving its finding on issue No.6 came to the conclusion that the land comprised in Khasra No.1386/1 is owned and possessed by the defendants i.e. the present petitioners. Appeal was filed by the plaintiff Shiv Lal. No appeal was filed by the State. His appeal has been dismissed on merits. However, the learned Appellate Court came to the conclusion that there was no occasion for the learned trial Court to have framed issue No.6 aforesaid. According to the learned lower Appellate Court there was no dispute with regard to the possession or ownership of this khasra number and the only question involved was whether the plaintiff had a right of passage or other easementary rights over this khasra number or not. Hence, the learned lower Appellate Court was of the view that this issue was not required to be framed. 4 4. I am totally in agreement with this finding of the learned lower Appellate Court. The disputes, if any, interse the defendants could not have been decided in a suit filed by the plaintiff. The plaintiff only claimed easementary rights over this land. He was not claiming ownership of this land. True it is that according to the plaintiff this land was owned by the State and defendants No. 1 to 4 claimed that this land comprised in Khasra No.1386/1 was owned by them but this issue was not required to be settled because a right of easement is claimed on or through the property of others. It was for the plaintiff to prove his right which he has not been able to prove and he has not even challenged the judgement and decree of the learned lower Appellate Court. 5. Surprisingly, the learned lower Appellate Court committed the same mistake. Once it came to the conclusion that this issue was not required to be framed it went on to giving its own finding on this issue and set-aside the findings of the learned trial Court and held that it is the State who is the owner of the land. With due respect, I am unable to reconcile these two diametrically opposite 5 findings given by the learned lower Appellate Court. On the one hand the learned lower Appellate Court held that this issue was wrongly framed. If that issue was wrongly framed then no finding should have been recorded on the issue. As indicated by me above, I am in agreement with the findings of the learned lower Appellate Court that no such issue was required to be framed because the question whether it is the State or the petitioner who was owner of the land was not one of the issues which arose out of the plaint filed by the plaintiff. However, once I hold that this issue was not required to be framed, the natural consequence is that the findings given on this issue both by the learned trial Court and the learned lower Appellate Court are not to be taken into consideration in any subsequent proceedings. In case any dispute arises between the petitioners and the State with regard to the ownership of Khara No. 1386/1 the same will have to be decided on the basis of the evidence led in those proceedings and any findings given in these proceedings will not act as res judicata and shall have no bearing on the decision of such 6 proceeding. Needless to say, both the parties shall be entitled to take all other relevant pleas in such proceedings, if they arise. With these observations the petition is disposed of. 24th November, 2010 (Deepak Gupta) ™ Judge