IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 26 of 1999. Judgment reserved on : 8.5.2009 Date of decision : May 22, 2009. Smt. Lonjom and another …Appellants. Versus Phunchog and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 For the Appellants : Mr. R.K.Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. For the Respondents : Ms. Vidushi Sharma, vice Mr.R.K. Sharma, Advocate for respondent No.1. None for respondent No.2. Kuldip Singh, Judge The appellants were plaintiffs in Civil Suit No. 153 of 1992 which was dismissed by the learned Sub Judge, Lahaul – Spiti at Kullu exercising the powers of Sub Judge 1st Class, Kullu on 19.3.1998. The judgment and decree dated 19.3.1998 were affirmed in Civil Appeal No. 27 of 1998 by the learned District Judge Kullu and Lahaul Spiti Districts on 31.10.1998, hence the plaintiffs have come in second appeal. 2. The facts in brief are that the appellants had filed a suit for declaration with consequential relief of injunction against 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 respondents that suit land more specifically detailed in the plaint has been recorded and shown in co-ownership and joint possession of respondents and one Kaljam Tobge. The possession of land under khatauni No. 12 is shown in the name of respondent No.2 and Kaljam Tobge, whereas the possession of land under khatauni No. 13 is shown in the name of respondent No.1. It has been alleged that earlier one Norboo was the owner in possession of the suit land who had four sons namely Nawang Tandup, Nawang Lote, Lobjang and Nachhungan. On the death of Norboo, his entire estate was inherited by his aforesaid four sons. Nawang Tandup had two daughters namely Nawang Dolma and Chhawang Dolma. On the death of Nawang Tandup on 5.12.1929 his entire estate was inherited by his brother Nawang Lote and other brothers namely Nachhungan and Lobjang took no share in the property left by deceased Nawang Tandup. The mutation to this effect was also attested in favour of Nawang Lote. Nachhungan died unmarried and issueless and his entire property was inherited by Lobjang exclusively and mutation to this effect was also attested in his favour. Lateron revenue officials reviewed the said mutation and attested afresh mutation of the estate left by Nachhungan in the name of remaining brothers including Nawang Lote. 3. It has further been alleged that Lobjang had filed Civil Suit No. 152 of 1955 against Nawang Lote and Smt. Nawang Dolma against the order of review and attestation of mutation in the name of other brothers including Nawang Lote. The said suit was compromised between the parties and compromise decree was passed. It was agreed in the compromise that Smt. Nawang Dolma 3 would enjoy usufruct of the suit land to the extent of 3-15-0 bighas till her death and after her death Nawang Lote would be entitled to get back the aforesaid land 3-15-0 bighas as absolute owner. 4. Nawang Lote died leaving behind namely Lagial and Phunchog respondent No.1. Lagial son of Nawang Lote had also died leaving behind his wife and son, the appellants. On the death of Lagial, the property including land other than the suit land was inherited by his wife as his widow and mutation to this effect was also attested in her favour. On the basis of compromise in the aforesaid civil suit, after the death of Nawang Dolma, it was Nawang Lote who was to inherit the land measuring 3-15-0 bighas out of the suit land. But Nawang Lote pre-deceased Nawang Dolma and Lagial and present respondent No.1 stepped into the shoes of Nawang Lote and inherited the estate left by deceased Nawang Lote in equal share. Therefore, they were also entitled to inherit to the aforesaid land of Smt. Nawang Dolma in equal share being legal representatives of deceased Nawang Lote and after the death of Lagial son of Nawang Lote, the present appellants stepped into the shoes of deceased Lagial and as such, are entitled to inherit the property equally with respondent No.1 being the son and widow of deceased Lagial. 5. The aforesaid Kaljam had also died and his estate was inherited by his brother Nawang Tanzin and the revenue entries showing respondents as owner in possession of the land to the extent of 3-15-0 bighas belonging to Nawang Dolma are wrong, factually incorrect and against the terms and conditions of the compromise arrived at in the previous suit. It was alleged that the 4 appellants are in possession of the suit land to the extent of half share measuring 3-15-0 bighas belonging to Smt. Nawang Dolma, after her death being legal representative of Lagial. Respondent No.1 is permanently residing at Bhunter and is not in possession of suit land and the share belonging to deceased Smt. Nawang Dolma is in occupation and possession of appellants to the extent of half share and the appellants are legally entitled to remain in its possession, but respondent No.1 on the basis of wrong revenue entries concealing the material facts from the Court, moved execution petition before the Court which was still pending for disposal and on the basis of said wrong revenue entries, the respondent No.1 had started to forcibly dispossess the appellants from the land to the extent of said share belonging to Nawang Dolma. On those facts, the suit was filed. 6. The suit was contested by respondent No.1 only by filing written statement he took preliminary objection that the suit has been filed by the appellants in collusion with respondent No.2, the objections of maintainability, limitation, concealment of material facts, locus – standi and non-joinder of necessary parties were taken. On merits, respondent No.1 has denied the stand of the appellants. It was contended that Lagial had died unmarried and issueless. The appellant No.2 is not his son and appellant No.1 is not his wife. The appellants No.1 and 2 are the wife and son of respondent No.2, they have no right, title and interest to inherit the suit property. Lagial pre-deceased his father, Nawang Lote and died unmarried and issueless. The respondent No.2 filed a separate written statement and admitted the claim of the appellant. The 5 replication was filed by the appellants wherein they reasserted their case. On the pleadings of the parties the following issues were framed:- 1. Whether the suit in the present form is not maintainable as alleged ? OPD. 2. Whether this suit is bad for non-joinder of necessary parties, as alleged? ..OPD. 3. Whether the suit is not within time? ..OPD. 4. Whether the suit has been filed with malafide intention in collusion with the defendant No.2 and if so, its effect?..OPD. 5. Whether the plaintiff No.1 and 2 are the widow and son of Lagial respectively, as alleged? .OPP. 6. Whether the plaintiffs are owners in possession of the suit land to the extent of half share belonging to Smt. Nawang Dolma and the entries in the revenue record to the contrary are wrong, illegal and not binding as alleged? ..OPP. 7. Whether the defendant No.2 has been coming in possession of the suit land adversely and this adverse possession has ripened into ownership as alleged?..OPD-2. 8. Whether the plaintiffs are entitled to the permanent prohibitory injunction as prayed for? ..OPP. 9. Relief. The issue No.4 was answered in affirmative, issues No.5 to 8 in negative, issue No.1 was held to have become redundant while issues No.2 and 3 were held not pressed. The suit was dismissed by the trial Court on 19.3.1998 and appeal was dismissed on 31.10.1998, hence second appeal which has been admitted on the following substantial questions of law:- 6 1. Whether the Courts below have failed to appreciate the documentary evidence, specially, the evidence adduced by the appellants/Plaintiffs? 2. Whether the lower Appellate Court has failed to answer all the pleas taken by the appellants/plaintiffs before him in the appeal? 3. Whether the trial Court has wrongly taken his findings taking into consideration the customs prevailing in the area concerned, whereas custom has not been pleaded by the parties? 4. Whether the Courts below have totally failed to appreciate the oral evidence adduced by the parties rather the Courts have wrongly appreciated the evidence adduced by the parties? 5. That apart from the above mentioned questions of law involved in this matter those are required to be examined and decided by this Hon’ble Court ? 7. Heard and perused the record. Mr. R.K.Gautam, Senior Advocate appearing on behalf of the appellants has submitted that the Courts below have not properly appreciated the evidence on record, the lower Appellate Court has failed to answer all the pleas taken by the appellants in the appeal. The trial Court has considered the custom prevailing in the area whereas the custom was not pleaded by the parties. He has submitted that in view of the material on record, the findings returned by the two Courts below are not sustainable. He has prayed for acceptance of the appeal. On behalf of the respondent No.1, it has been submitted that the two Courts below have concurrently returned findings against the appellants on facts. In second appeal, re-appreciation of the evidence is not permissible. The learned counsel appearing on behalf of respondent No.1 has supported the impugned judgment, decree. 7 8. The substantial questions of law No.1 and 4 are inter- connected and, therefore, both of them are being taken up together for disposal. The two questions have been framed on appreciation of oral and documentary evidence. It has not been pointed out what specific oral or documentary evidence has not been properly appreciated by the two Courts below. It has also not been shown what material evidence has been ignored or what inadmissible evidence has been considered by the Courts below affecting the decision on merits. The evidence cannot be re-appreciated in second appeal. The appellants have not projected the case of mis- construction or mis-interpretation of the oral and documentary evidence on record. In these circumstances, the substantial questions of law No.1 and 4 are decided against the appellants. 9. In substantial question of law No.2, the grievance has been raised by the appellants that the lower Appellate Court has not answered all the pleas taken by the appellants in appeal. It is not the case of the appellants that some particular plea was urged before the lower Appellate Court but that specific plea was not considered and answered by the lower Appellate Court. The Court is not supposed to answer the grounds of appeal unless those grounds are pressed before the Court at the time of hearing. The appellants have not specifically pointed out which specific point was urged and not answered by lower Appellate Court. The substantial questions of law No.2 is decided against the appellants. 10. In substantial question of law No.3, a question has been raised that the parties have not pleaded custom but the trial Court has taken into consideration the custom prevailing in the area. The 8 trial Court while considering issues No.5 and 6 has recorded a finding that the appellants have not succeeded Lagial and they have also failed to prove that they are owners in possession of the suit land to the extent of half share of Nawang Dolma. The trial Court after noticing tribal custom known as Rewas-e-am Sub Division Kullu has alternatively held that when appellant No.1 had contracted second marriage with respondent No.2, she lost her rights in the property of her former husband. This does not mean that the trial Court has recorded his entire findings on issues No.5, 6 on custom. In fact in the grounds of appeal in the lower Appellate Court, the appellants have not raised grievance against the custom in the manner as they have raised in second appeal in substantial question of law No.3. They have rather relied polyandry system in order to claim that the appellant No.1 after the death of Lagial started living as wife of respondent No.2 under the custom. The appellants in lower Appellate court had assailed the judgment of the trial Court on some grounds but not specifically on the ground that the trial Court could not have considered custom known as Rewas-e-am Sub Division Kullu in alternative while considering issues No.5 and 6. The learned counsel for the appellants has failed to make out a case that the trial Court has decided issues No.5 and 6 only on the basis of custom and not otherwise. The substantial question of law No.3 is decided against the appellants. 11. The substantial question of law No.5 does not arise from the respective case of the parties, hence substantial question of law No.5 is also answered accordingly. 9 12. The two Courts below have recorded concurrent findings against the appellants, such findings are not perverse nor the appellants could point out that the findings are based upon mis- construction or mis-interpretation of evidence or inadmissible evidence. No case for interference is made out. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), April 22, 2009, Judge. (GR)