IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 298 of 1995. Reserved on : 5.4.2008 Decided on: 7.5. 2008. Maya Dutt and others. …Appellants. Versus Bhawani Dutt .Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ?1 No. For the Appellants : Mr.Janesh Gupta, Advocate. For the respondent : Mr.Ramakant Sharma, Advocate. ______________________________________________________________ Rajiv Sharma, Judge This Regular Second Appeal has been directed against the judgment and decree passed by the learned District Judge, Solan, H.P. in Civil Appeal No.66-B/13 of 1993 dated 30.6.1995. The brief facts necessary for the adjudication of the Second Appeal are that the plaintiff/respondent (hereinafter referred to as the ‘plaintiff’ for convenience sake) had filed a suit in the Court of learned Sub Judge Ist Class, Kandaghat on 29.7.1987 for permanent injunction and possession in respect of the land comprising Khewat No.11 min Khatauni No.22 Khasra No.565 measuring 0-4 bighas situate in Mauja Garkhal, Pargana, Lachharang, Tehsil Kasauli, District Solan, H.P. The plaintiff had prayed for passing a decree for permanent prohibitory injunction restraining the appellants/defendants (hereinafter referred to as ‘the defendants’ for convenience sake) from interfering with the ownership and possession of the plaintiff over the suit land 1 .Whether the reports of Local Papers may be allowed to see the judgment? No. 2 in any manner and in the alternative a decree for possession of 8 biswansis of land comprised in Khasra No.565/1 was sought. The defendants had contested the suit by filing a written statement. The learned Trial Court on the basis of the pleadings of the parties had framed the following issues: 1. Whether the plaintiff is in exclusive possession of the suit land, as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled for relief of injunction, as prayed for? OPP 3. Whether the plaintiff is estopped from filing the present suit as alleged? OPD 4. Whether the suit is not maintainable in the present form as alleged? OPD 5. If the plaintiff is not found in possession of the suit land whether he is entitled for relief of possession, as prayed for? OPP 6. Relief. The learned trial Court has recorded the following findings on the issues framed for determination: Issue No.1 Yes. Issue No. 2 Yes. Issue No.3 : No. Issue No.4. No. Issue No.5 Yes. Relief : Suit decreed with no order as to costs per operative part of the judgment. The learned Sub Judge 1st Class, Kandaghat, decreed the suit preferred by the plaintiff on 15.7.1993. The defendants feeling aggrieved by the judgment and decree dated 15.7.1993 preferred an appeal before the Learned District Judge, Solan. The learned District Judge, Solan has framed the following points for determination: 3 1. Whether the impugned judgment and decree warrants interference? 2. Final Order. The learned District Judge, Solan has recorded the following findings on the points which read as under: Point No.1: No. Point No 2: Per operative part of the judgment, the appeal is dismissed. The learned District Judge, Solan dismissed the appeal on 30.6.1995. This Regular Second Appeal has been filed against the judgment and decree dated 30.6.1995. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the suit of the plaintiff-respondent was barred by the provisions of order 2 rule 2 of the Code of Civil Procedure and the principles of constructive resjudicata? 2. Whether the plaintiff was estopped to file the suit on account of the documents Exhibit P-1 and Ext.D-1? 3. Whether the suit of the plaintiff was not maintainable with respect to the relief of possession with respect to Khasra No.565/1 in the absence of proper plan or description of the boundaries or tatima? 4. Whether the Exhibit DW-5/A, demarcation report which was obtained by the plaintiff much prior to compromise could be pressed into service to file the suit alleging the encroachment of 8 biswansis of land? Mr. Janesh Gupta, Advocate appearing on behalf of the defendants had strenuously argued that the judgment and decree passed by the learned District Judge, Solan dated 30.6.1995 is not sustainable in the eyes of law. He had further contended that the learned District Judge has mis-read and misinterpreted the evidence brought on record by the parties. 4 Mr. Ramakant Sharma, Advocate has supported the judgment and decree passed by the learned District Judge, Solan dated 30.6.1995. I have heard the learned counsel for the parties and perused the record carefully. Since all these questions are inter-connected as such to avoid the repetition of discussion of evidence, the same are being taken up together. The plaintiff examined as many as 5 PWs to prove his case. The plaintiff PW-1 in his statement has stated that he was coming in possession of the suit land for the last 43 years. PW-2 Maya Chand has deposed regarding blockade of the path by the defendants. PW-3 Laxmi Dutt has also deposed regarding earlier blockade of the path by the defendants. PW-4 Nabhi Ram, Patwari has stated that during investigation of the police case, he inspected the spot alongwith Kanungo and found a wall raised on the land of the plaintiff. PW-5, Mathura Dass, Field Kanungo has proved the demarcation report Ex.PW-5/A. The defendant Mohinder Dutt appeared as DW-1. He has stated that there was prolong litigation between the parties regarding the disputed Dunga and the Patwari had inspected the spot on 17.1.1980 and there was a compromise arrived at between the parties. Now, the Court has to advert to the documentary evidence proved by the plaintiff. Ex.P-1 is the copy of the order passed by the Gram Panchayat. Ex.P-2 is the copy of the order passed by the Deputy Commissioner and Ex.P-4 is the copy of the jamabandi for the year 1984-85. In view of the statements of the PWs read with these exhibits i.e. P-1, P-2 and P-4, the only conclusion, which can be drawn, is that the plaintiff was in exclusive possession of the suit land comprising in khasra No. 565. As far as Khasra No. 565/1 is concerned, the defendants tried to prove their ownership by taking a plea of adverse possession. The plea of adverse possession raised by the defendants was rejected by the learned trial court by giving a cogent and convincing finding. 5 So far as Ex.D-1 dated 15.3.1978 is concerned, the suit filed by the plaintiff Bhawani Dutt was withdrawn on the basis of the statement of the plaintiff, which was accepted by Shri Inderjit Singh, Advocate appearing on behalf of the defendants. The suit was withdrawn on the basis of the compromise arrived at between the parties in earlier suit filed by the plaintiff on 29.7.1987 when the defendants had started interfering over the suit land in the month of May, 1986. The interference by the defendants in the suit land had given new cause of action to the plaintiff to file a fresh suit and it was not barred by Order 2 rule 2 of the Code of Civil Procedure. Mr. Janesh Gupta, Advocate has strenuously argued that there was no proper plan or description of the boundaries of the disputed land and thus the suit could not be decreed. Suffice to observe that the parties knew precisely where the land of khasra No. 565 and 565/1 was situated. The spot was visited by PW-4 Nabhi Ram, Patwari along with Kanungo as noticed above. In fact, PW-5 Mathura Dass, Field Kanungo had demarcated the land vide report Ex.PW-5/A whereby the exact description of the property has been given. In view of this the law cited by Mr. Janesh Gupta on this point will not be applicable. There are no questions of law much less any substantial question of law involved in this Regular Second Appeal. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There shall be no order as to costs. ( Rajiv Sharma ), J. May 7, 2008. *awasthi*