IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 20 of 2005. Reserved on: 10.4.2009. Decided on: 21.4.2009. __________________________________________________ Municipal Committee/Council, Nahan … Appellant. Versus Shri Shamshad Ahmad … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Ms. Ruma Kaushik, Advocate. For the Respondent : Mr. Anand Sharma, Advocate with Mr. Jagar Nath, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 38-CA/13 of 2003 dated 1.10.2004. Brief facts necessary for adjudication of this regular second appeal are that respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a civil suit for declaration and in the alternative for adverse possession with consequential relief of permanent prohibitory injunction with the averments that the land comprised in Khasra No. 2158 (old) which was lateron 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 shown as Khasra No. 2511, 2512, 2514 and 2633 in the copy of Misal Hakiyat for 1988-1989, which was subsequently converted into Khasra No. 89 measuring 3-17 bighas earlier owned by one Jyoti Prashad and others was in possession of Smt. Tuli widow of Mohd. Baksh, as tenant. The proprietary rights were conferred on her in the year 1965-1966. The land was converted into Khasra No.595/89 and 597/89, total measuring 2-14 bighas. Smt. Tuli had no male issue. The plaintiff was coming in possession of the property of Khasra No. 2158 old and its converted Khasra number is 89 and new Khasra Nos. 595/89 and 597/89. Smt. Tuli died in the year 1968. Her property was inherited by Smt. Amir Begum alias Miro and the plaintiff in equal shares vide mutation No. 73 dated 21.3.1977. The settlement took place in the year 1971. The Revenue Settlement staff after converting the old Khasra No. 595/89 and 597/89 into new Khasra Nos. 1009, 1016, 1017, 1020 and 1025 without demarcating the land and against the factual position on the spot instead of making Khasra No. 1010 prepared from old Khasra No. 2158 had made it from Khasra No. 1958 and its ownership was shown in the name of appellant-defendant (hereinafter referred to as the defendant for convenience sake) for the reason that old Khasra No. 1958 was in other Mohalla of Reajinder Nagar at a distance of more than 1000 meters from Khasra No. 2158 (old). The defendant under the garb of wrong revenue entries of the settlement tried to evict the plaintiff from the suit land. In the alternative, it was prayed that if the suit land was not proved in the ownership of the plaintiff, in that eventuality the plaintiff being in possession of the suit land continuously, openly, 3 peacefully and uninterruptedly as to the knowledge of the defendant for more than 68 has preferred title by way of adverse possession. The defendant contested the suit. The trial Court decreed the suit on 7.7.1997. The defendant preferred an appeal before the learned District Judge, Sirmaur at Nahan. The same was dismissed on 1.10.2004. This regular second appeal was admitted on the following substantial questions of law: 1. Whether non-consideration of oral as well as documentary evidence, which goes to the root of the matter, has vitiated the findings of the learned court below? 2. Whether the suit of the plaintiff was maintainable in the facts and circumstances of the matter? 3. Whether the misreading of documents Exts. DA to DW-3-/A and D-1 to D-16 by the learned Courts below have vitiated the findings as delivered by the learned court below? 4. Whether the learned court below has correctly appreciated documents Ext. PW-1/A to PW-1/X and Exts. PA to PQ and by misreading the above documents has arrived at a finding not warranted in the eyes of law? 5. Whether the learned Courts below have correctly appreciated the provisions of Section 43 of the Himachal Pradesh Municipal Act, 1994? 6. Whether the suit of the plaintiff was maintainable in the present form when proceedings against the plaintiff were pending under the provisions of the Himachal Pradesh Public Premises Act? 4 7. Whether the learned First Appellate Court was right in dismissing the application of the appellant under Order 41 Rule 27 CPC? Ms. Ruma Kaushik, Advocate has strenuously argued that the judgments and decrees passed by both the learned Courts below are not sustainable. Mr. Jagan Nath, Advocate appearing vice Mr. Anand Sharma has supported the judgments and decrees passed by both the learned Courts below. I have heard the learned counsel for the parties and perused the record carefully. The substantial questions of law are being taken up together for adjudication to avoid repetition and for convenience. Ms. Ruma Kaushik, Advocate has vehemently argued that the learned Courts below have misread oral as well as documentary evidence. She also contended that the application preferred under Order 41 Rule 27 CPC could not be dismissed by the learned First Appellate Court. Ext. PA/1 reflects that old khasra number of the suit land was 2158 which was converted into khasra No. 89. Shri Jyoti Prashad was owner in possession of the suit land. The land was measuring 2-17 bighas. Smt. Tuli was inducted as tenant in the year 1957-1958 as per Ext. PW-1/A (Ext. PB). Ext. PW-1/C shows that Khasra No. 89 was converted into Khasra Nos. 595/89 and 597/89. It is revealed from copy of Misal Hakiyat Ext. PW-1/D that new Khasra No. 1009 was carved out of Khasra No. 595/89, whereas Khasra Nos. 1016, 1017, 1020 and 1025 were carved out 5 of old Khasra Nos. 597/89 min, 597/89 min, 597/89 min and 597/89 min respectively. The name of Smt. Tuli was recorded as owner in possession. The mistake on record is apparent from the copy of Misal Hakiyat Bandobast Jadid for the year 1973-74 Ext. PW-1/Q when for the first time, though, Khasra No. 996 appears to have been carved out from old Khasra No. 2158 min but, new Khasra No. 1010 which is disputed khasra number and forms part of the suit land appears to have been wrongly shown to have been carved out from Khasra No. 1958. The name of the appellant-Municipal Committee/Council figured as owner in possession. These entries were further repeated in Khasra Girdawari for 1978 to 1982 Ext. PW-1/E and also in the copy of Misal Hakiyat for 1988-89 Ext. PW- 1/O. The plaintiff had filed an application for correction of revenue entries on 11.9.1979. The report of the Field Kanungo is dated 3.6.1982 (Ext. PW-1/K). He has found that old Khasra No. 89 Bara in Nahan town was found to be earlier owned by Jyoti Prashad and the said Khasra number was converted from Khasra No. 2158 and the present Khasra No. 1010 measuring 154.50 square meters, which is shown to have been carved out from Khasra No. 1958, was part of Khasra No. 2158. The report of Shri Rajinder Kaushal, Tehsildar, Nahan is also in favour of the plaintiff. He reported that though as per revenue record, Municipal Committee was recorded as owner in possession but on the spot the plaintiff was in physical possession of the same and Khasra No. 1010 was wrongly recorded having been carved out from Khasra No. 1958. He reported that Khasra No. 1010 was part of old Khasra No. 1958 which was converted into Khasra No. 89. 6 In successive petitions filed for eviction of the plaintiff, it was found that the Committee had failed to establish its claim on the suit land. The last order was passed by the Sub Divisional Collector, Nahan on 4.8.1980. It had attained finality. DW-1 had admitted that the plaintiff has been in possession of the suit land. DW-3 Rajender Singh, Patwari also admitted that Sabka number 1958 is in Muhal Rajinder Nagar and even according to him, Khasra No. 1010 was part of Khasra No. 2158. The plaintiff has proved that the suit land was part of old Khasra No. 2158. It was wrongly shown to have been carved out from Khasra No. 1958 in Misal Hakiyat for the year 1973-74. Smt. Tuli was conferred proprietary rights. DW-1 had admitted that there were no documents produced on record by the defendants. There was sufficient material before the learned Courts below to adjudicate upon the matter on the basis of documentary and oral evidence led by the parties. In these circumstances, the application preferred by the defendant under Order 41 Rule 27 CPC has been rightly dismissed by the learned First Appellate Court. There is no misreading of documents as argued by Ms. Ruma Kaushik, Advocate. The application preferred by the defendant for evicting the plaintiff has been dismissed by the competent authority after the failure of the defendant to prove his possession over the suit land. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. April 21, 2009. (cr)