HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 57 of 1996 Reserved on: 9.5.2011. Decided on: 27.5.2011. Muni Lal and others ……Appellants. Versus Daulat Ram and others. ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Rajneesh K. Lal, vice Mr.K.D. sood, Advocate. For the respondents: Mr.Karan Singh Kanwar, Advocate, for respondents No.1(a) to 1(f), 4 to 9, 12 and 13. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/plaintiff under Section 100 of the CPC against the judgment and decree, dated 22.1.1996, passed by the learned Additional District Judge, Mandi, vide which he partly modified the judgment and decree of the learned Sub Judge Ist Class, Mandi, dated 30.8.1989, and partly decreed the suit of the respondent/plaintiffs. 2. Briefly stated, the facts of the case are that the respondents (hereinafter also referred as the plaintiffs) filed a suit for permanent prohibitory injunction as against the appellants (hereinafter also referred to as defendants). The allegations made by the plaintiffs were that the land in suit comprised in Khasra No.56, measuring 0-12 bighas, as detailed in the plaint, is recorded in the ownership and possession of plaintiff No.1 and the father of plaintiffs No.2 to 12. It was alleged that the defendants, without any right, title or interest, - 2 - are causing unlawful interference in the peaceful possession of the plaintiffs and are threatening to dispossess them from the suit land, hence the suit filed by the plaintiffs. The plaintiffs also alleged that they have also raised some plants and the defendants are threatening to remove the said standing trees over the suit land.. 3. Defendants took up some preliminary objections. On merits, they denied that the suit land is under the ownership and possession of the plaintiffs. Rather they pleaded that previously the suit land was shown under the ownership of State of H.P. and in possession of Kalu, predecessor-in-interest of the plaintiffs No.2 to 12 as non-occupancy tenants alongwith the predecessor-in-interest of the defendants, namely, Jindu. It was alleged that thereafter, consolidation took place and the land was shown as partitioned but some land remained joint. New Khasra No.56 was carved out of Khasra No.45 (old), but the suit land remained under the possession of the defendants throughout, which is adjacent to the house and cowshed of the defendants. In the alternative, they also pleaded that they are in adverse possession over the suit land which possession has matured into title and as such the plaintiffs have no right over the suit land. 4. On the pleadings of the parties, the learned trial Court framed the following issues: “i. Whether plaintiffs are owner in possession of the suit land? OPP - 3 - ii. Whether defendants are interfering with the possession of the plaintiffs over the suit land as allege? OPP iii. Whether defendants are owner in possession of the suit land as alleged? OPD iv. In case Issue No.3 qua ownership of the defendants is not proved, whether defendants have become owners of the suit land by adverse possession as alleged? OPD v. Whether plaintiffs have no cause of action to file the present suit? OPD vi. Whether plaint is not properly verified, if so, its effect? OPD vii. Whether suit is properly valued for the purpose of court fee and jurisdiction? OP Par. viii. Whether suit is not maintainable in the present form? OPD ix. Whether suit is bad for non-joinder and mis- joinder of parties as alleged? OPD x. Relief.” 5. Parties led their evidence and the learned trial Court, vide its impugned judgment held that the plaintiffs are owners in possession of the suit land. It was held under Issue No.4 that the defendants have failed to prove their adverse possession over the suit land and consequently the suit for permanent injunction was decreed in favour of the plaintiff and as against the defendants. 6. On appeal by the defendants, the same was partly allowed to the extent that they are in possession of the land measuring 0-0-15 bighas shown as Khasra No.50/1 new (old Khasra No.56), but they have failed to prove their possession over the remaining part of the land measuring 0- - 4 - 1-9 bighas shown by Khasra No.50/2 (old khasra No.56) and accordingly the suit of the plaintiff stood partly decreed only, as detailed above. 7. Being aggrieved, the appellants have filed the present appeal, but no cross appeal has been filed by the respondents. 8. The appeal was admitted on the following substantial question of law: “1. Whether the learned first Appellate Court was justified in interfering with the report o fthe Local Commissioner when none of the parties had objected to the same and particularly when the parties had consented to bound by such report of the Local Commissioner?” 9. I have heard the learned counsel for the parties and have gone thought the record of the case. 10. The submissions made by the learned counsel for the appellants were that the Local Commissioner had clearly found that in the land measuring 0-0-15 bighas, there existed a house, cowshed and Sehan of the appellants, which possession was continuous, open and hostile and accordingly the suit of the plaintiffs should have been dismissed in full. It was also submitted that the Sehan/cowshed of the appellant was to be treated as integral part and, therefore, findings to the contrary are liable to be affirmed. 11. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons given therein. It was submitted that the appellants - 5 - had no right over the Sehan, though they may be using the same and accordingly, the findings as against the respondents were liable to be set aside. 12. On appraisal of the judgment passed by the learned trial Court, it is clear that it had come to the conclusion that as per the report of the Local Commissioner, which was relied upon, there was a cow shed in Khasra No.50/1 (new) measuring 0-15 bighas and this possession of the appellants over this part of the land was clearly proved from the report of the Local Commissioner. It was also observed by the learned Appellate Court that there is no dispute that the cowshed was owned by the appellants and the respondents have nowhere claimed that the cowshed was belonging to them. Once the court had come to the conclusion that the appellants were in possession of the part of the suit land, therefore, the relief of permanent injunction was rightly modified and the respondents were not held entitled to the relief of injunction in their favour for part of the land found in possession of the appellants. For the remaining land, the respondents were proved to be in possession and the basis of the modification of the relief by the learned Appellate Court was the report of the Local Commissioner, which had not been proved to be incorrect by either of the parties by filing objections and taking this plea and proving the same in accordance with law. It was also observed by the learned Appellate Court that the possession of the plaintiffs over the part of the land in dispute is recorded as per the - 6 - copies of the jamabandi right from the year 1968-1969, which has not been rebutted by the appellants. Therefore, the learned Appellate Court had come to the conclusion that the relief of injunction granted in favour of the respondents for a part of the suit land was liable to be modified which was accordingly modified in view of the report of the Local Commissioner. There is no challenge to the report of the Local Commissioner, which stood confirmed and the learned Appellate Court on the basis of the report of the Local Commissioner modified the relief granted by the learned trial Court. Neither there was any prayer for relief of possession in the alternative nor any case was made out for grant of relief of possession in favour of the respondents for part of the land found in possession of the appellants and, therefore, it is clear that there is no merit in the appeal filed by the appellants. There is no necessity of reappraisal of the evidence, once both the courts below had referred to the oral as well as documentary evidence in detail and the relief was modified by the learned Appellate court relying upon the report of the Local Commissioner, which findings do not call for an interference by this Court. In regard to the part of the land proved to be in possession of the appellants, the submissions of the learned counsel for the appellants had no merit that the plaintiffs may be using the same as Sehan but the Local Commissioner found the possession of the appellants over this part of the land and no case is made out for interfering in the report of the Local - 7 - Commissioner, who was appointed with the consent of the parties, whose report was not set aside on any ground and, therefore, the relief of injunction was rightly declined by the learned Appellate court for part of the land found to be in possession of the appellants even though it may be used as Sehan. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which stands dismissed. Parties are left to bear their own costs. May 27, 2011. (V.K. Ahuja), (tilak) Judge.