IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 465 of 1998 and C.O. No. 150 of 2000. Judgement reserved on: 17.12.2009. Date of decision: 18.12. 2009. Smt. Salochana Devi & ors. ….. Appellants Vs. Smt. Basantu ….. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Arun Kumar, Advocate. For the Respondent : Mr. R.K.Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. Kuldip Singh, Judge. This judgement shall dispose of RSA No. 465 of 1998 and Cross Objection No. 150 of 2000. This appeal has been directed against judgement, decree dated 18.8.1998 passed by learned District Judge, Solan in Civil Appeal No. 90-NL/13 of 1996 reversing the judgement, decree dated 27.11.1996 passed by learned Sub Judge Ist Class, Nalagarh in Civil Suit No. 197/1 of 1990. In the appeal respondent has filed cross-objections. 2. The facts in brief are that Bhagoo Ram had filed a suit for permanent prohibitory injunction by pleading that land measuring 2 biswas comprised in khata khatauni No. 17/51, khasra No. 233/10, village Kunplate, Pargana Chamba, Tehsil NIalagarh, District Solan Whether the reporters of the local papers may be allowed to see the Judgment? …2… was given on lease by Gram Panchayat, Jokhari to him vide resolution No. 2 dated 7.3.1974. In the same year he constructed a house on that land by spending Rs.25,000/-. The Assistant Collector Ist Grade, Nalagarh ordered his ejectment on 7.2.1990, which order was upheld by Collector on 12.6.1981. Thereafter Bhagoo Ram had filed the suit, which was decreed on 27.9.1993 and he was declared owner in possession of the suit land. The judgement and decree dated 27.9.1993 was upheld by learned District Judge and the High Court. 3. Teerath Ram used to live with brother Bhagoo Ram in the house, both the brothers used to run hotel and tea stall in the house. After the death of Teerath Ram, his widow Basantu wanted to oust Bhagoo Ram from the suit land with the help of Beli Ram, Lekh Ram and Shiv Dei, hence Bhagoo Ram filed the suit against all of them. 4. Basantu, Beli Ram and Shiv Dei contested the suit by filing written statement and have taken preliminary objections of maintainability, locus-standi, lack of cause of action, Bhagoo Ram was neither owner nor in possession of the suit land. It was admitted that suit land was allotted to Bhagoo Ram vide resolution No.2 dated 7.3.1974 of Gram Panchayat. It was denied that Bhagoo Ram only raised the construction on the suit land. The construction was jointly raised by Bhagoo Ram, Teerath Ram husband of Basantu, father Sant Ram and three other brothers Krishna, Bansi Ram and Bagga Ram in the year 1974. On 23.6.1979 Bhagoo Ram, father Sant Ram and other three brothers had relinquished and abandoned their right, title and interest in the suit property in favour of Teerath Ram and put him …3… in exclusive possession of the suit property. Thus Teerath Ram remained in exclusive possession of the suit property as owner during his life time. Teerath Ram died on 24.5.1990 and after his death his widow Basantu had been running Dhaba and tea stall in the suit property. The respondent thus denied any right, title or interest of Bhagoo Ram in the suit property. In replication, Bhagoo Ram reiterated his case. Bhagoo Ram had filed an application dated 8.10.1996 for deleting the name of Lekh Ram, which was allowed. On the pleadings of the parties, the following issues were framed by the trial court:- 1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction? OPP. 2. Whether plaintiff has relinquished and abandoned his right in the suit property vide writing dated 23.6.1979, as alleged? OPD. 3. Whether the suit of the plaintiff is not maintainable, as alleged? OPD. 4. Relief. The learned Sub Judge on 27.11.1996 answered issues No. 1 and 2 in negative and issue No. 3 in affirmative and dismissed the suit. Bhagoo Ram filed an appeal against the judgement and decree dated 27.11.1996. In the appeal, plaint was amended and relief of possession was prayed. The learned lower appellate court has framed the following issue No. 3-A:- Whether the plaintiff/ appellant is entitled for possession? OPP. …4… The learned District Judge allowed the appeal and set-aside the judgement and decree of the trial court, suit of Bhagoo Ram for joint possession of 1/6th share in the suit property with Basantu respondent was decreed on 18.8.1998. In these circumstances, Bhagoo Ram filed the second appeal. Bhagoo Ram died during the pendency of the second appeal and his legal representatives were brought on record. The second appeal has been admitted on the following substantial questions of law:- 1. Whether the learned courts below have erred in law by decreeing the suit partly qua 1/6th share only, whereas the plaintiff/ appellant is the exclusive owner of land and house in question? 2. Whether the courts below has exceeded in its jurisdiction by not giving any findings on issue No. 3(a). 3. Whether the learned appellate court below has erred in law by formulating a question for determination for joint possession against the pleadings of the parties, if so its effect? 4. Whether the finding of lower appellate court is based on the inadmissible documents DW 2/A is liable to be set-aside, if so its effect? 5. In the appeal, cross-objections No. 150 of 2000 have been filed, wherein a prayer has been made for setting aside the …5… impugned judgement and decree and restoration of judgement and decree passed by the learned trial court. 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that Ext. DW 2/A is inadmissible document and cannot be taken into consideration for giving any benefit to respondent except for considering the case of possession of respondent on the suit land. The learned District Judge has returned the findings that Bhagoo Ram had 1/6th share in the suit property. This was neither the case of Bhagoo Ram nor of respondent. The learned District Judge has made out completely a new case for the respondent. In the written statement, it has been admitted that land was allotted to Bhagoo Ram by the Panchayat. Therefore, it is reasonable to infer that owner of the land is the owner of the structure on the suit land unless positive evidence is led to prove that the structure was raised on the suit land by the respondent or her predecessor. In the present case, no evidence of such nature has been led. The learned Senior Advocate appearing on behalf of the respondent has supported the judgement and decree passed by the trial court. He has submitted that respondent is exclusive owner in possession of the suit property. It has been submitted that learned District Judge has erred in giving 1/6th share to Bhagoo Ram in the suit property. Substantial questions of law No. 1 to 4: 7. The substantial questions of law No. 1 to 4 are interconnected, therefore, all of them are taken up collectively for …6… deciding the appeal as well as the cross objections. The case of Bhagoo Ram was that he was owner of the suit land. The case of the respondent is that she is owner in possession of the suit land. It was nobody’s case that suit property is jointly owned by the parties. Ex. DW 2/A is writing dated 23.6.1979. This writing indicates that some decision was taken on 23.6.1979 on the terms and conditions mentioned in the writing. The writing further provides that Teerath Ram had become owner of the house from the date of writing and Krishna, Bagga Ram and Bansi Ram had left their shares in favour of Teerath Ram. In other words, Teerath Ram was given the house on the basis of writing Ex. DW 2/A. There is no denial of the fact that writing Ex. DW 2/A deals with property more than hundred rupees, therefore, the property mentioned in Ex. DW 2/A could be transferred to Teerath Ram only on registration of Ex. DW 2/A, but Ex. DW 2/A is not a registered document and not admissible in evidence so far title of Teerath Ram with respect to suit property was concerned. 8. The respondent is the widow of Teerath Ram and is claiming title to the property through Teerath Ram. Ex. DW 2/A can be considered only for collateral purpose to ascertain the possession. There is no denial of the fact that respondent is in possession of the suit property. The plaint was amended in lower appellate court and relief of possession was added. The respondent has not taken plea of adverse possession on the suit property. The suit is based on title, which has been proved in favour of appellants. The respondent has no right to remain in possession of the suit property in view of title of …7… the suit property in favour of Bhagoo Ram and after him his successors appellants. 9. The learned first appellate court from nowhere has made out a case that Bhagoo Ram had 1/6th share in the suit property, which was neither the case of Bhagoo Ram nor of respondent Basantu. In these circumstances, the impugned judgement, decree to the extent it gives 1/6th share only to the appellants in the suit property requires modification. There is no merit in the cross objections. The substantial questions of law No. 1 to 4 are accordingly decided in favour of appellants. 10. No other point was urged. 11. In view of above discussion, the appeal is allowed, impugned judgement, decree are modified, a decree of possession of the suit property is passed in favour of the appellants and against the respondent, the cross-objections are dismissed, with no orders as to costs. December 18, 2009. ( Kuldip Singh ), (Hem) Judge.