IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 261 of 1997. Date of decision: 6.11.2009 Ranjit Singh & Ors. …. Appellants Versus Sh.Sukh Ram. ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellants: Shri Bhuvnesh Sharma, Advocate. For the respondent: Sh.Neeraj Gupta, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) This Regular Second Appeal was admitted on the following questions of law:- “1. Whether the learned Appellate Court has erred in reversing the well reasoned judgment and decree passed by the learned Trial Court? 2. Whether the learned District & Sessions Judge has failed to appreciate oral as well as documentary evidence while passing the impugned judgment 2 dismissing the suit qua the claim of the appellant No.1? 3. Whether the evidence adduced by the Panch witness pertaining to the facts be denied reliance when there is nothing contrary to give reliance to it? 4. Whether the judgment passed by the learned Appellate Court is vitiated on account of mis-reading of pleadings and evidence on record?” This Regular Second Appeal is directed against the judgment of the learned District Judge, Hamirpur passed in Civil Appeal No.7 of 1992 dated 3.6.1997 whereby he has partly allowed the appeal filed by the defendant and has modified the decree passed by the learned Sub Judge Ist Class (I), Hamipur in Civil Suit No.68/86 dated 21.12.1991. Briefly stated the facts of the case are that the plaintiffs claim to be the owner in possession of Khasra No.133 measuring 1 kanal 17 marlas situate in Tika Kuthera, Mauza Jalari, Tehsil Nadaun. According to the plaintiffs, the defendant who has no right over the suit land had collected the construction material with intention to raise construction over the suit land. Hence a prayer was made for grant of permanent prohibitory 3 injunction restraining the defendant from interfering in the suit land. The defendant contested the suit and the main defence was that the defendant had purchased a house measuring 20x10 haath from one Sh.Ajit Singh on 16.12.1974 who was the previous owner of the suit land. He denied that he was interfering in any other land of the plaintiffs. On the pleadings of the parties, the following issues were framed:- “1. Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for? 2. Whether the defendant has occupied any portion of the suit land, if so, to what extent and manner? 3. If issue No.2 is proved in affirmative, whether defendant has become owner of this protion by way of adverse possession, as alleged? 4. Whether the suit is not maintainable as alleged? 5. Whether the plaintiffs are estopped by their act and conduct? 6. Whether the plaintiffs have no cause of action? 7. Relief.” 4 The evidence was led by the parties and a local Commissioner was also appointed. The learned court below came to the conclusion that the defendant had not purchased any land out of the suit area and, therefore, decreed the suit as prayed for. The defendant filed an appeal. The learned District Judge held that the defendant had purchased area measuring 20x10 haath from Ajit Singh out of the suit land and, therefore, was entitled to retain the same. However, while passing the decree, he has dismissed the suit in respect of 18 marlas and only passed a decree in respect of 19 marlas. Hence the present appeal by the plaintiffs. The total suit land measures 1 kanal 17 marlas. From the evidence on record, it is apparent that prior to the land being denoted by one khasra number, i.e., Khasra No.133, the same land was depicted by two separate khasra numbers, i.e., khasra Nos.707/251 and 708/251. The combined land of these two khasras was 1 kanal 17 marlas, 19 marlas falling in Khasra No.707/251 was agricultural land being ‘Barani-do-fasli’ and 18 marlas falling in Khasra No.708/251, ‘Gair Mumkin Abadi’. It is apparent from the record and not disputed before me that the abadi portion of the land was initially 5 owned and possessed by one Sh.Chaudhary. On his death, his widow Smt.Ghogan succeeded to his share. She was shown in exclusive possession of 18 marlas depicted as ‘Gair Mumkin Abadi’ in the Jamabandi, Ex.D- 1 for the year 1972-73 whereas the agricultural land was shown in possession of plaintiffs No.1 to 3 and their brother Joginder Singh. It is thus obvious that the plaintiffs had already purchased 19 marlas from the previous owner and 18 marlas, i.e., half share out of the total land, was in the possession of Smt.Ghogan. On the death of Smt.Ghoghan, her son Ajit Singh inherited her share in the suit land and came into possession of the land depicted as ‘Gair Mumkin Abadi’. It is, therefore, more than obvious that total land of 1 kanal 17 marlas was divided into two shares. Half share belonged to the plaintiffs who took 19 marlas of the agricultural land and half share, i,e, 18 marlas of abadi land remained with Sh.Chaudhary then Smt.Ghogan and then Sh.Ajit Singh. Sh.Ajit Singh admittedly executed a sale deed Ext.DW4/A in favour of the defendant Sukh Ram by which sale deed, he sold his house situate in the abadi alongwith rights appurtenant thereto to the defendant. Unfortunately in the sale deed, khasra number of the land was not given. However, the 6 description of the property was given in relation to the houses/land of the other land owners which were adjacent the house which was sold to the defendant. The learned court below has held that the boundaries so described are sufficient to identify the land in question. Sh.Bhuvnesh Sharma, learned counsel for the appellants contends that the land sold to the defendant is some other land falling in ‘Abadi Deh’ and not a part of the suit land. I am unable to accept this contention. A finding of fact has been given by the learned Lower Appellate Court that the property sold to the defendant Sukh Ram can be identified by means of the description given in the sale deed. I myself have gone through the sale deed Ext.DW4/A and find that it is clearly mentioned in the sale deed that Ajit Singh had sold a two storied building having slate roof measuring 20x10 haath. While describing the boundaries of the land it is stated in the sale deed that the house adjoins the land of Jai Chand on the eastern side. On the western side, the land is adjacent to the land of Jai Chand. On the North the land of Partap Singh adjoins the house and on the south by the house of Prithvi Chand. 7 Plaintiff No.3 Sh.Opinder Singh appeared in the witness box as PW/1. In his statement he has clearly stated that the house of Smt.Ghogan existed in the suit land. This house was later inherited by Ajit Singh. He also admitted that Ranjit Singh, plaintiff No.4 had purchased a ‘Taur’ (vacant piece of land) from Ajit Singh. It is, therefore, obvious from the statement of PW/1 itself that no house was purchased by Ranjit Singh from Ajit Singh. Therefore, it is more than apparently clear that out of 18 marlas of abadi land, Ajit Singh had sold a constructed portion to Sukh Ram, defendant and the remaining portion to plaintiff No.4 Ranjit Singh. In view of above discussion, the findings of the learned lower Appellate Court are correct and have to be upheld. Having held so, the operative portion of the judgment of the learned lower Appellate Court is not correct. Even the case of the defendant was that he had only purchased a house measuring 20x10 haath and, therefore, the suit qua the entire 18 marlas of abadi land could not have been dismissed. Consequently, the appeal is partly allowed and the decree of the learned lower Appellate Court is modified. The plaintiffs are held entitled to a decree of permanent prohibitory injunction 8 restraining the defendant from interfering in the entire khasra No.133 except the house measuring 20x10 haath which was purchased by him. The plaintiffs shall also be entitled for decree for possession of khasra No.133/4 as granted by both the courts below. It is however, clarified that the defendant shall be entitled to all rights which were transferred to him by the sale deed Ext.DW4/1 in respect of the house measuring 20x10 haath. Decree- sheet be drawn up accordingly. CMP No.429 of 2008 The appellant No.1 has filed an application for additional evidence. The ground given is that the applicant was serving in the Navy and, therefore, could not properly prosecute the case. The suit was filed in the year 1986 and we are in the year 2009. After 23 years, the plaintiff cannot be permitted to lead additional evidence. Even otherwise, I have held that the applicant is owner of 18 marlas of land except the portion 20x10 haath on which a house is situated and owned by the defendant. Therefore, the application is rejected. 9 The appeal is disposed of in the aforesaid terms. No order as to costs. November 6, 2009 ( Deepak Gupta ) (m) Judge