IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 498 of 1998 Reserved on: 3.11.2008 Date of decision: 10.11.2008 Om Parkash ... Appellant Versus Dinu alias Dinu Ram & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Romesh Verma, Advocate. For the respondents: None for respondents. V.K. Ahuja, J.: This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant against the judgment and decree of the Court of learned District Judge, Kangra at Dharamshala, dated 19.6.1998, vide which the learned District Judge dismissed the appeal filed by the appellant against the judgment and decree of the Court of learned Sub Judge Ist Class(II), Palampur, dated 14.6.1995 Briefly stated, the facts of the case are that respondents No. 1 to 7 as plaintiffs, hereinafter to be referred as the plaintiffs, filed a suit for declaration and injunction, in which respondent No. 1 was impleaded as defendant No. 1 and respondents No. 22, 23, 24 and 25 were impleaded as defendants No. 2 to 5, while remaining respondents were impleaded as proforma defendants. It was alleged by the plaintiffs that the plaintiffs 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 and defendants No. 6 to 12 are co-owners in possession of the land comprised in Khasra Nos. 279 and 278 measuring 0-03-71 Hectrs. Situate in Mohal Gangoh. It was alleged that the plaintiffs and these defendants are co-owners in possession and are entitled to remain in possession and the revenue entries showing defendants No. 1 to 5 as owners in possession of this land are wrong, null and void and are liable to be corrected. The plaintiffs also prayed for consequential relief of permanent injunction against defendants no. 1 to 5. They had alleged that the suit land comprising in pre-settlement Khasra Nos. 448, 449 and 452 was recorded in the ownership and possession of Sain, predecessor-in- interest of plaintiff and defendants No. 6 to 12. But during settlement, contesting defendants No. 1 to 5 in collusion with the settlement staff got themselves recorded as owners in possession of the suit land showing that it was part of old Khasra No. 451. Thus, it was pleaded that on the basis of this entry, defendants no. 1 to 5 are interfering in possession of the plaintiffs, hence the suit filed by them. Defendants No. 1 to 5 pleaded that the suit land was not part of old Khasra Nos. 448, 449 and 452, rather it was owned by defendants No. 1 to 5 and was in exclusive Hissadari possession of defendant No. 1. They also pleaded that defendants No. 13 and 14 had instituted a civil suit against defendants No. 1 and 2 and predecessor-in-interest of defendants No. 3 to 5, which was dismissed and as such, the present suit was barred by principle of resjudicata. On the pleadings of the parties, 13 issues were framed by the learned trial Court. The main issue was as to whether the suit land was part of Khasra Nos. 448, 449 and 452 before settlement as alleged by the plaintiffs. In the alternative, the point to be considered was if the suit land 3 was not part of Khasra No. 451 owned and possessed by the contesting defendants. The learned trial Court decided the suit after taking into consideration oral as well as documentary evidence. It was held that the part of the suit land measuring 0-00-85 Hectrs. comprised in Khasra No. 279/1 and land measuring 0-01-15 Hectrs. Comprised in Khasra No. 278/1, as shown in Local Commissioner’s report was part of old Khasra No. owned and possessed by the plaintiffs and as such, the entries are liable to be corrected and as such, the relief of injunction in regard to this part of the land was also granted in favour of the plaintiffs and as against contesting defendants No. 1 to 5. On appeal, those findings were affirmed by the learned first Appellate Court. The respondents were served after admission also but they failed to put up their appearance. I have heard Mr. Romesh Verma, learned counsel for the appellant and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the appeal was admitted on for substantial questions of law as formulated at the time of admission. The first question was in regard to the fact as to whether the Courts below committed an error in law adjudicating the issue relating to title and holding against the appellant merely on the basis of the report of the Local Commissioner. The next question was as to whether the report of the Local Commissioner was legally admissible and third question was in regard to the plea of resjudicata. The fourth question was also framed in regard to the question as to whether the plaintiffs have failed to raise any objection during the settlement and as such, they are estopped from filing the present suit. In regard to the last 4 question neither any arguments were raised during the course of hearing nor it was pointed out as to how the plaintiffs were debarred from filing the present suit. Therefore, this Court has to confine itself to the two questions in regard to the report of Local Commissioner and whether the said report is admissible or not and the connected question as to whether the dismissal of the earlier suit filed by defendants No. 13 and 14 operates as resjdicata. Coming to the question regard to the report of the Local Commissioner, the learned counsel for the appellant has submitted that the report was submitted by the Local Commissioner. He pointed out that the Local Commissioner had not taken permanent points while submitting his report which were required to be taken by him and were required to be mentioned in the report. It was also submitted that the objections of the defendants in regard to the report of the Local Commissioner were dismissed summarily and as such, the said report could not have been the sole basis of the findings given by the learned trial Court. Coming to these objections in regard to the report of the Local Commissioner, it is clear from a perusal of the judgment passed by the learned trial Court that a Local Commissioner was appointed who was a retired Consolidation Officer and he had given the extensive report running into 56 pages. A perusal of the report shows that this report was also confirmed by the learned trial Court on 9.12.1992. The objections were called to the report, which were considered by the learned trial Court and were disposed of as per order dated 9.12.1992 and the report of the Local Commissioner was confirmed. No specific arguments were addressed in regard to this report except that the objections were dismissed summarily and the Local Commissioner had not taken the permanent points while conducting the demarcation and, therefore, the report was not liable to be confirmed. A perusal of the record of the learned trial Court shows that the 5 learned trial Court had framed a preliminary issue on 8.1.1992 as to whether the report of Local Commissioner is liable to be set aside as alleged. Thereafter opportunity was given to the objectors to lead evidence who examined two witnesses and thereafter, the evidence of respondents was recorded who also examined two witnesses. Thereafter, the report of the Local Commissioner was accordingly confirmed and the objections filed have been dismissed. There is nothing on record to show as to whether any revision was filed by the defendants against the order passed by the learned trial Court confirming the said report of the Local Commissioner. It cannot be said that the objectors were not given opportunity to lead evidence or that the Court had summarily rejected the report once both the parties were given an opportunity to lead evidence. The objector had also appeared in witness box as OW-1 and he simply stated that the Local Commissioner measured land from one side but there is nothing in his statement that no permanent points were taken an the Local Commissioner was also examined as RW-1 and was subjected to detailed cross-examination. The said report was, therefore, confirmed by the learned trial Court and since the said report was not assailed during trial, the said report was confirmed and this plea as against the report could have been taken in the grounds of appeal filed before the learned first Appellate Court. I have gone through the grounds of appeal filed before the learned first Appellate Court and the only ground taken is that the report has not been prepared in accordance with law or that the demarcation and measurement was not done in accordance with the instructions issued by the F.C. but no such plea was specifically taken in regard to permanent points or as to how the report suffers from any infirmity, In the second appeal, the findings recorded by the learned trial Court on the basis of the evidence are not to be reconsidered until and unless a substantial question of law arises 6 in this second appeal which only has to be considered. The facts of the case have been considered since the appeal was admitted by this Court and substantial questions of law were also considered but on a perusal of the record no such substantial question of law arises which calls for minute appraisal of the evidence oral as well as documentary and no infirmity could be pointed out in the said report so as to told that it could not have been relied upon. In coming to the findings recorded by the learned trial Court, the learned trial Court had not only considered the report of the Local Commissioner or made it as sole basis for its findings but had also referred to the oral as well as documentary evidence which was duly considered by the learned first Appellate Court also and the said evidence does not require reappraisal again in the second appeal. Suffice to say that the findings recorded in this regard confirming the report of the Local Commissioner or relied upon the report of the Local Commissioner apart from the evidence calls for no interference by this Court. Coming to the question in regard to the plea of resjudicata since a substantial question of law was raised in this regard also. Therefore, a brief reference is being made to the earlier suit filed by the two of the proforma defendants and it was not filed in the representative capacity, which fact had been discussed by the learned first Appellate Court also as well as by the learned trial Court and once it was not filed in a representative capacity, the other co-sharers, namely, plaintiffs and other proforma defendants are not precluded from filing this suit since the defendants may have filed suit as co-sharers in their own capacity and not in a representative capacity. Therefore, such findings do not operate as resjudicata. After consideration of the record and arguments raised during hearings, I am of the opinion that there is no merit in the appeal filed by the appellant since the question as to 7 whether the land was a part of earlier Khasra numbers owned by the plaintiffs or defendants had mainly to be determined from demarcation which was, therefore, rightly relied upon by the learned trial Court and it was the basis of the judgment and decree passed by the Courts below and, therefore, no case is made out for interference in those findings. In view of the above discussion, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Both the parties are left to bear their own costs. Decree-sheet be prepared accordingly. In view of the dismissal of the main appeal, the interim order dated 17.12.1998, confirmed on 19.5.2000 in CMP No. 775 of 1998, stands vacated. ( V.K. Ahuja ), November 10, 2008 Judge (BSS) 8