IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 207 of 1999. Judgement reserved on: 6.11.2007. Date of decision: 7.1.2008. Gurdass & anr. ….. Appellants. Vs. Dev Raj & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. Anuj Nag, Advocate. Kuldip Singh, Judge. The defendants are in appeal against the judgement, decree dated 1.3.1999 passed by the learned District Judge, Una in Civil Appeal No. 91 of 1992 reversing the judgement, decree dated 6.4.1992 passed by the learned Sub Judge, Court No. II, Amb, District Una, in case No. 90/87 RBT No. 361/89. 2. The facts in brief are that respondents- plaintiffs filed a suit for declaration that they are owners in possession of land measuring 1.03.42 Hectares (27 Kanals 4 Marlas) comprised in khasra Nos. 524, 542, 592, 593, 610, 611, 612, 615, 618, 624, 657, 658, 609,588, 632, 634, 634/1 and 636 as per Misal Hakiyat, Whether the reporters of the local papers may be allowed to see the Judgment? …2… situate in village Duhal Bangwalan, Tehsil Amb, District Una, entries in the revenue record in the column of possession in the name of appellants are unauthorised, null and void and not binding on the respondents. They have also prayed for consequential relief of permanent injunction restraining the appellants from interfering in any manner in the possession of the respondents. In alternative, the respondents filed suit for possession in case appellants take forcible possession during the pendency of the suit. 3. The further case of the respondents is that they had earlier filed a suit against Smt. Raffi Devi claiming themselves as tenants on the suit land, which was decreed in their favour up to High Court. The appellants are real brothers of Smt. Raffi Devi, they have procured wrong entries in connivance with the revenue staff behind the back of the respondents. After passing of the decree in their favour proprietary rights have been conferred on respondents. They are owners in possession of the suit land. The appellants are threatening to interfere in the possession of the respondents, hence the suit. 4. The suit was contested by the appellants by filing a written statement, in which preliminary objections of maintainability of the suit, limitation, non-joinder of necessary parties were taken. It has been submitted that respondents are not owners in possession of the suit land, and, they are not entitled to declaration and injunction as prayed by them. On merits, the appellants denied that respondents are owners in possession of the suit land. The respondents have been wrongly shown in possession in the record. On the basis of …3… wrong record, they have filed a suit against Smt. Raffi Devi, who was wrongly recorded in the revenue record. The wrong revenue record does not confer any right on the respondents. The decree passed in favour of respondents earlier is not binding on the appellants. Smt. Raffi Devi was not owner in possession nor she was inducted as tenant on the suit land. Previously Ram Rakhu and Nanku were tenants under the original owners, after the deaths of Ram Rakhu and Nanku, the appellants came in possession as tenants on the suit land, but Smt. Raffi Devi was wrongly recorded as tenant on the suit land after the deaths of Nanku and Ram Rakhu. The appellants thus contested the claim of the respondents and prayed for dismissal of the suit. 5. The respondents filed replication to the written statement wherein they have reasserted their case and denied the case set up by the appellants. The learned Sub Judge recorded a finding that respondents are owners but not in possession of the suit land. It was held that suit is maintainable, within time and is not bad for non joinder of necessary parties. In view of findings on issue No. 1, the suit was dismissed on 6.4.1992. In appeal, learned District Judge set-aside the judgement, decree dated 6.4.1992 and decreed the suit of the respondents to the effect that plaintiffs be recorded in possession of the suit land in the jamabandies prepared during settlement by deleting the names of appellants- defendants without causing any interference qua the right, title and interest of Smt. Biasa Devi mentioned in column No.4 (column of possession) in Ex.P 1 and …4… Ex.P 2. Defendants were restrained from causing interference on the suit land. The appellants are in second appeal. 6. The appeal has been admitted on the following substantial questions of law:- 1. Whether the findings returned by the learned District Judge below stand vitiated for want of mis-joinder of necessary parties i.e. the true owners of the suit land? 2. Whether the learned Ist appellate court below erred in placing reliance on Exts. P-3 and P-8 while decreeing the suit of the plaintiffs against the defendants when defendants were not the party in the said suit? 7. I have heard the learned counsel for the parties and gone through the record. Mr. Ajay Sharma, learned counsel for the appellants has submitted that respondents have filed suit declaring them owners in possession of the suit land. As per revenue record, Smt. Biasa Devi is one of the owners of the suit land. The suit has been filed against the interest of Smt. Biasa Devi, but she has not been impleaded as party in the suit, therefore, suit is not maintainable. He has also submitted that judgement, dated 25.10.1979 Ex. P-3, is not binding on the appellants inasmuch as the appellants were not parties in that case nor the appellants are claiming through the persons who were parties in the case decided on 25.10.1979. He has submitted that there is no document Ex. P-8 on record and, therefore, he does not press his claim on the basis of Ex. P-8 mentioned in substantial question of law No.2 referred above. The learned counsel for the respondents has submitted that Smt. …5… Biasa Devi is not a necessary party in the suit. He has supported the impugned judgement and decree. Substantial questions of law No. 1 & 2: 8. The substantial questions of law No.1 and 2 emerge from the same material and, therefore, are interconnected, hence both are being disposed of together. 9. The respondents in the suit have prayed declaration that they are owners in possession of the suit land and the entries in the revenue record in the column of possession in the names of appellants are unauthorized, null and void, incorrect and fictitious having no binding effect on the right, title and interest of the respondents and are against the factual position on the spot with consequential relief of permanent prohibitory injunction. The substance of the suit of the respondents is that appellants are not in possession of suit land . The appellants filed written statement and in addition to other pleas, they have taken the plea that suit is bad for non- joinder of necessary parties i.e. Jashan Dev Singh, Ravinder Singh, Smt. Piaro Devi, Gopal Singh, Jit Singh owners of the suit land. The learned trial court framed issue No. 4 “whether the suit is bad for non-joinder of necessary parties” and held that declaration prayed by respondents cannot be given unless Biasa Devi is joined, who is a necessary party and therefore, decided issue No. 4 in favour of the appellants. There was no objection in the written statement that the suit is bad for want of Biasa Devi. The objection of necessary parties was with respect to other persons, namely Jashan Dev Singh, Ravinder Singh, Piaro Devi, Gopal Singh and Jit Singh. The …6… respondents have based their suit on the basis of misal haquiat Ex. P 1 and Ex. P 2. In the column of ownership in Ex. P 1 Dev Raj s/o Painchu, Balbir Singh, Gurdevi and Biasa Devi are recorded as owners. Some others are recorded as mortgagees. In Ex. P 1 itself in the column of possession names of Gurdas and Dev Raj s/o Bhagat Ram are recorded. In Ex. P 2 Dev Raj s/o Painchu, Balbir Singh and Gurdevi are recorded in the column of ownership and Gurdas and Dev Raj s/o Bhagat Ram in the column of possession. In the written statement filed by the appellants, no objection has been taken that the suit is bad for want of Biasa Devi. The perusal of the plaint would show that respondents’ main grievance is with respect to entries of names of the appellants in the column of possession in the revenue record. In the suit it is not the prayer of the respondents that they are “exclusive” or only “owners” of the suit land. The plaint cannot be construed that the respondents are not admitting Biasa Devi as one of the owners on the suit land. In any case, the respondents filed the suit against the appellants and the decision in the suit will be binding on the parties to the suit and the persons claiming through them and not on others. The suit is not bad for impleading Biasa Devi. 10. The case of the respondents is that earlier also they filed a suit against Raffi Devi the real sister of the appellants, which was dismissed, but in appeal the learned District Judge, Una, vide judgement dated 25.10.1979 Ex. P 3 decreed their suit and gave declaration in their favour that they are in actual possession of the land in dispute as tenants. The judgement of the learned District …7… Judge was upheld by this court on 19.5.1980 in RSA No. 161 of 1979. In other words, it is the case of the respondents that in the earlier suit, on the suit land they were found in possession. In the earlier suit the appellants were not parties, but the court has gone into the question of possession of the respondents on the suit land and found the respondents in possession of the suit land. The judgement rendered in earlier suit may not be having binding effect on appellants, but previous judgement is relevant to a limited extent . Even though the previous judgement Ex. P 3 is not binding on the appellants as they were not parties in the previous case, it cannot be ignored that Raffi Devi party in the earlier suit is none-else but the sister of the appellants. It was not the case of Raffi Devi in the earlier suit that her brothers, present appellants are in possession of the suit land, which is clear from judgement Ex. P 3. The learned District Judge in the impugned judgement has rightly observed that earlier decree is to be given effect in the revenue record. In other words, as against Raffi Devi the earlier decree is to be implemented in the revenue record. In these circumstances, judgement Ex. P 3 becomes relevant. In any case, the learned District Judge independent of judgement Ex. P 3 in para-19 of the impugned judgement has recorded a finding that in Ex. P 5 jamabandi for the year 1972-73 the suit land is recorded to be cultivated through Painchu father of appellants No. 1 and 2 (plaintiffs) as sub-tenants. Shera, the husband of Raffi Devi was already dead and, therefore, his name in the jamabandi for the year 1978-79 was wrongly shown, name of Raffi Devi in jamabandi for the year 1978-79 was nullified by the previous decree. The land comprised in khasra …8… Nos. 634, 634/1 and 636 has been mutated in the ownership and possession of appellants (plaintiffs) and this is a finding of fact. The appeal has not been admitted on a substantial question of law that this finding is perverse and has been returned by ignoring some material evidence or on the basis of inadmissible evidence. This finding of fact cannot be gone into in the second appeal. The possession of the appellants on the suit land was recorded by virtue of order dated 6.4.1985 in file No. 114-SMT-85, which has not been placed on record. There is nothing on record to show on what basis the names of appellants were ordered to be recorded in the revenue record, vide order dated 6.4.1985. 11. The learned District Judge has recorded a finding that proprietary rights of the suit land have been conferred in favour of the respondents. This finding has not been specifically assailed in the grounds of appeal. The trial court has also held the respondents as owners of the suit land. The appellants have failed to make out any case for interference. The substantial questions of law No. 1 and 2 are accordingly decided against the appellants. No other point was urged. The result of the above discussion, the appeal fails and is accordingly dismissed. January 7, 2008. ( Kuldip Singh ) (Hem) Judge.