IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.76 of 1998. Judgment Reserved on: 16.7.2008 Date of decision: 25.08.2008 Bhagirath …Appellant-Plaintiff Versus Hem Raj and Others …Respondents-Defendants Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Vinod Gupta vice Mr.Rajesh Mandhotra, Advocate. For the Respondents:Mr.Lalit Kumar Sharma, Advocate. Dev Darshan Sud,J. This is the plaintiff’s appeal against the concurrent findings of the two Courts below dismissing his suit for permanent prohibitory injunction claiming a decree against the defendants prohibiting and restraining them from raising any structure over Khasra No.1573 and 1575, Khata Khatauni No.8 min/26 min claimed by the plaintiff in his ownership as co-owner and on the basis of a registered sale deed from the other co-owners. The suit was contested by the defendants- respondents on a number of grounds. Learned trial Court settled seven issues. Issues No.1 and 2, which 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 were fundamental to the decision of the case, were,(i) as to whether the plaintiff-appellant herein was in exclusive possession and (ii) whether the defendants were interfering with his possession. On These issues alongwith issues No.4 and 6 to the effect, (iv) as to whether plaintiff was estopped from filing the suit having suffered a consent decree in case title Bhagirath vs. Subhash in respect of the same land and (vi) whether defendant No.1 had purchased Khasra No.1573/1, measuring 0-2-5 bighas from Subhash, after recording oral and documentary evidence of the parties, the learned trial Court held that the plaintiff had not been able to establish his exclusive possession over the suit land comprised on these two Khasra numbers, namely, 1573 and 1575 and that defendant No.1 had established by clear and cogent evidence that he had purchased land comprised in Khasra No.1573/1 from its previous owner. It was also held that in the suit titled: Bhagirath vs. Subhash the plaintiff, appellant herein, had admitted the possession of Subhash predecessor-in-interest of defendant Hem Raj and had undertaken in unequivocal terms not to interfere with his possession. An appeal was preferred in the Court of learned District Judge where these issues were again canvassed for re-consideration and the learned Court on a conspectus of the totality of the evidence concluded that the plaintiff was not entitled to the 3 relief as prayed for. It also held that the plaintiff, appellant herein, had approached the Court by suppressing material facts by not disclosing that he had purchased only 5 biswas of land which was in his possession and suppressing the fact that the defendant had constructed his house on Khasra No.1573 which fact was in his knowledge. The appeal was accordingly dismissed. This appeal was admitted by this Court on two substantial questions of law, namely:- “1. Whether a statement made by a party in earlier suit which was compromised on such statement and the said compromise decree was set aside on an appeal filed by the person whose statement was recorded on the ground of undue influence, fraud and misrepresentation can be taken into consideration in a subsequent suit against him? 2. Whether the finding of the ld.Appelalte Court with regard to specific share of plaintiff on the land in dispute is sustainable in the eyes of law or not? Question No.1: Considering first question, the judgment of the Courts below is not based solely on the statement made by the plaintiff, appellant herein. It is undisputed that in that suit, that is Bhagirath vs. 4 Subhash, the plaintiff, appellant herein, had made a statement that he would not interfere in the possession of Subhash who is the predecessor-in- interest in title of defendant No.1. This compromise decree was challenged by the plaintiff, appellant herein, on the ground that the terms had not been reduced into writing. The matter was remanded to the trial Court for decision afresh, where-after the plaintiff, appellant herein, deliberately did not pursue his suit and allowed it to be dismissed in default. This shows the attitude of the plaintiff, appellant herein. The learned trial Court as also the appellate Court have considered the entire oral and documentary evidence and concluded that the plaintiff had no claim for exclusive possession of the land as claimed by him. The learned District Judge on reappraisal of the entire evidence holds that although the suit, in which the statement was made, was allowed to be dismissed by the plaintiff, appellant herein, after remand. This was an indicative fact not only of the attitude of the appellant but also a supportive circumstance which established that the appellant had in-fact admitted such possession. Having said so, the learned District Judge, considered the case on the basis of the Ex.P-4, copy of the sale deed, on which the plaintiff placed reliance, holding that Kirlu had sold to plaintiff only 1/30th share, out of 5 his share from the total of 1/4th share in the joint land. The fact that Shri Kirlu had only 1/4th share in the total land, measuring 13-19-0 bighas and out of his share, 1/30th share was sold, the entire area comes to 5 biswas. In Jamabandi for the year 1986- 87 (Ex.P-1) Kirlu is shown to be in possession of Khasra No.1575, measuring only 5 biswas. In Khasra No.1573 Rondu is shown to be in exclusive possession of this land. The Khasra Girdawari (crop inspection) for the year 1986-87 (Ex.P-3) and Jamabandi for the year 1991-92 (Ex.DY1), plaintiff and defendants are shown as co-sharers in possession of the land comprised on 8min/29min, measuring 15-18-13 bighas. The Court holds and rightly so that the plaintiff is not recorded in exclusive possession of land comprised in Khasra No.1575 or 1573 for which land the plaintiff-appellant seeks decree, as prayed for in the suit. The learned District Judge has also held that PW-2 Rondu has stated that he is co-owner in the suit land and that a house has been constructed over Khasra No.1573/1, measuring 0-2-5 bighas. More importantly, the plaintiff himself admits that Hem Raj, defendant No.1 had constructed a pucca house of 3/4 rooms and the plaintiff never protested it. The statement of PW-3 Vyas Devi also supported the fact that this house was constructed by defendant No.1 Hem Raj without any dispute being raised by the 6 plaintiff. DW-1, Hem Raj, has also affirmed these facts in his evidence negativing the claim of exclusive possession of the plaintiff. Having found that the plaintiff has no exclusive possession of the land claimed by him qua which he filed the suit, the house having been constructed much earlier to the suit having been filed, the Court then concludes that the factum that the plaintiff-appellant had purchased only 5 biswas of land in which he is in exclusive possession and that he has suppressed material facts which were sufficient in law to disentitle him from any equitable relief of injunction. The suit was dismissed. On going through the judgments of the Courts below and record I do not find that it is the sole statement made by the plaintiff that he would not interfere with the possession of Shri Subhash, predecessor-in-interest of defendant No.1, which is the basis on which the decisions were rendered by the Courts below. Rather the conduct of the plaintiff, appellant herein, having challenged the compromise and then allowing the suit filed to be dismissed, shows his inclination of abusing the process of the Court. The revenue record is totally against the claim made by the plaintiff and the oral evidence also does not establish this fact. This question is accordingly decided against the appellant. I hold 7 that the statement made by the plaintiff was not the sole basis on which the judgment was based. Question No.2: The second question raised can be disposed of by holding that the learned appellate Court has held on the reading of the sale deed (Ex.P-4), the statements of the parties as also the revenue record i.e. Ex.P-1 Jamabandi for the year 1986-87, Ex.P-3 Khasra Girdawari for the year 1986-87 and Ex.DY/1 Jamabandi for the year 1991-92, that the plaintiff is not in exclusive possession of the suit land. The learned Court also holds that sale deed itself shows the extent of holdings of the plaintiff-appellant. This being findings of fact based on the evidence on the record, cannot be faulted with nor re-appreciated in second appeal. This question is answered against the appellant. This appeal is accordingly dismissed. There shall be no order as to costs. August 25, 2008. (Dev Darshan Sud) (aks) Judge.