IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 241 of 1999 Reserved on: 16.12.2008 Date of decision: 06.01.2009 Mehar Singh ... Appellant Versus Basant Ram … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. H.K. Bhardwaj, Advocate. For the respondent: Mr. N.K. Thakur, Advocate. V.K. Ahuja, J.: This is a Regular Second Appeal filed by the appellant under Section 100 C.P.C. against the judgment and decree dated 1.2.1999 of the Court of learned District Judge, Una, affirming the judgment and decree dated 12.8.1993 passed by the learned Sub Judge Ist Class, Court No. II, Amb, decreeing the suit of the respondent for permanent prohibitory injunction as against the appellant. Briefly stated, the facts of the case are that the respondent as plaintiff filed a suit for permanent injunction as against the appellant, who was impleaded as defendant. It was alleged by the plaintiff that the land in suit comprised in Khasra No. 2485 measuring 18 Marlas was previously possessed by the defendant. It was alleged that in the year 1970, the plaintiff entered as Gair Moroosi under the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 defendant and since then the plaintiff continues in possession as Gair Moroosi. The plaintiff alleged that he had been paying Chakota to the defendant and the entry of ‘Kabiz’ in the suit land in favour of the defendant is wrong, illegal and void. The plaintiff also alleged that the defendant received Chakota last time amounting to Rs.75/- for the years 1988 to 1990 from the plaintiff and issued the receipt in favour of the plaintiff. The plaintiff also alleged that after passing of the H.P. Tenancy Act, he has become owner and the defendant has no right, title or interest in the suit land and as such, he filed suit for declaration that he be declared as owner in possession of the suit land and the entries as against the plaintiff be corrected and the relief of permanent injunction be also granted in favour of the plaintiff and as against the defendant. Defendant pleaded that he was owner in possession of the suit land. He never inducted plaintiff as the tenant over the suit land nor he put him in possession and as such, the suit is liable to be dismissed. The defendant also denied having issued any receipt in favour of the plaintiff. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether plaintiff is owner in possession of suit land? OPP 2. Whether plaintiff is entitled to relief of injunction? OPP 3. Relief. The learned trial Court vide its impugned judgment held that the plaintiff is tenant at will over the suit land and the defendant is restrained from interfering in the possession of the 3 plaintiff over the suit land. On appeal, those findings were affirmed by the learned first Appellate Court. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were firstly, that the application filed under Order 41 Rule 27 C.P.C. by the appellant before the learned first Appellate Court deserves to be allowed which was wrongly dismissed and as such, the appeal deserves to be allowed and the case should be remanded to the learned first Appellate Court for taking into evidence those documents and deciding the matter afresh. The next plea taken by the learned counsel for the appellant was that the revenue record clearly proves that the plaintiff was never inducted as a tenant and since the defendant continued in possession of the suit land, the findings to the contrary are liable to be set aside. On the other hand, the learned counsel for the respondent submitted that no substantial question of law arises for consideration and even no question of law is involved in the case since both the Courts below have given their findings on the basis of the admission made by the appellant before the Revenue Officer in correction proceedings. It was also submitted that the application filed by the appellant under Order 41 Rule 27 C.P.C. did not satisfy the requirements of Order 41 Rule 27 C.P.C. and the appellant had failed to prove as to why these documents could not be produced earlier and as such, those findings of learned first Appellate Court dismissing the application under Order 41 Rule 27 C.P.C. as well as dismissing the appeal call for no interference by this Court. 4 Coming to the first question in regard to the dismissal of the application under Order 41 Rule 27 C.P.C., it was observed by the learned Appellate Court that these documents were in existence and there is nothing on record to show as to why the number of documents could not be produced earlier by the appellant and as such, the said order calls for no interference by this Court. A perusal of the record of the case shows that the appellant filed an application under Order 41 Rule 27 C.P.C. and cited list of 17 documents sought to be produced before the Appellate Court by means of the present application under Order 41 Rule 27 C.P.C. Most of the documents are copies of Missal Hakiat, copies of Khasra Girdawaris etc. pertaining to the earlier period and it cannot be said that these documents were not in existence or could not be produced by the appellant by exercise of due diligence. In such circumstances, when the defendant had not been vigilant enough to file the relevant documentary evidence before the learned trial Court when the written statement was filed or during the trial of the case which had taken about three years, it cannot be said that these documents can be permitted to be produced at any stage by the appellant by just filing an application and making vague allegations that these could not be produced earlier. In view of the above discussion, it is clear that since the application filed did not satisfy the requirements of Order 41 Rule 27 C.P.C., the application was rightly dismissed by the learned first Appellate Court, which order calls for no interference by this Court. Coming to the second question as to the findings or a substantial question of law arises in this appeal, the appeal was admitted by this Court on three substantial questions of law as formulated 5 alongwith the grounds of appeal. A perusal of the record shows that the first substantial question of law was as to whether the Civil Court has got the jurisdiction to give the declaration in favour of the plaintiff and secondly if the Civil Court had the jurisdiction to try the suit and the third question was in regard to the fact as to whether the Appellate Court has rightly interpreted the provisions of the Order 41 Rule 27 C.P.C. The third question of law has already been answered in the above discussion. Coming to the jurisdiction of the Civil Court, the correction application filed by the plaintiff had been dismissed by the Revenue Officer on the basis of the statement made by the defendant before the Revenue Officer admitting that the plaintiff was the tenant over the suit land. Thus, there was no dispute in regard to the question that the plaintiff alleged that he was the tenant over the suit land and the plaintiff had filed the suit for declaration and permanent injunction for correction of the revenue entries show the defendant as in possession and this question could only be determined by the Civil Court and not by any other Court. The suit for declaration and permanent injunction lies before the Civil Court and on the basis of the order passed, the Civil Court had the jurisdiction to grant the relief of declaration and permanent injunction. The appeal has not been admitted on the question as to whether any statement was made by the defendant or not before the Revenue Officer in the form of admission or whether any receipt was issued or not by him in favour of the plaintiff. The evidence in this regard has been considered fully by both the Courts below and since the appeal was not admitted for reconsideration of the oral and documentary 6 evidence and nothing has been pointed out that the learned trial Court or the first Appellate Court had failed to consider any oral or documentary evidence which was relevant for just decision of the case and as such, no case is made out for reappraisal of the evidence by this Court in second appeal. No decision was cited by the learned counsel for the appellant during the course of arguments to show that in the facts and circumstances of the case that the Civil court had no jurisdiction to decide the lis in between the parties. On the other hand, the learned counsel for the respondent had relied upon the decision in Madhavan Nair Vs. Bhaskar Pillai (Dead) by LRs., (2005) 10 Supreme Court Cases 553, in which it was held that first Appellate Court neither ignoring any material evidence nor considering any inadmissible evidence. In such circumstances, interference with the concurrent findings, held, not justified. It was further held that even an error on the part of the first Appellate Court in recording the finding of the fact would not, itself, be a ground for High Court to upset the same. From the above discussion, it is clear that no case was made out for reappraisal of the evidence and no substantial question of law arises in this appeal and as such, there is no merit in the appeal filed by the appellant, the same is dismissed accordingly. However, the parties are left to bear their own costs. ( V.K. Ahuja ), January 06, 2009 Judge (BSS)