IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 516 of 2001 alongwith Cross-Objection No. 19 of 2002. Judgment reserved on : 1.9.2011 Date of decision : 15.10.2011 Jagdish Ram ..Appellant. Vs Hari Ram and others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. T.S.Chauhan, Advocate. For the respondents : M/s K.D.Sood and Balwant Singh, Advocates, for respondent No.1. Kuldip Singh , Judge The defendant No.7 has come in appeal against judgment, decree dated 24.11.2000 passed by learned District Judge, Bilaspur in Civil Appeal No. 9 of 1991 modifying judgment, decree dated 18.12.1990 passed by learned Senior Sub Judge, Bilaspur Camp at Ghumarwin in Civil Suit No. 15-1 of 1990/87. The names of respondents No. 2 to 13 were deleted vide order dated 11.4.2002 subject to all just exceptions. The parties in this judgment are referred as plaintiff and defendants. 2. The pleaded case of the plaintiff is that he is in adverse possession of land measuring 1 bigha 2 biswas comprised in Khasra No. 5 and 1 bigha in khasra No. 4 village Jajjar, Tehsil Ghumarwin. The 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 defendants are threatening to forcibly dispossess the plaintiff from the suit land and, therefore, plaintiff filed the suit for declaration and permanent prohibitory injunction restraining the defendants from interfering over the suit land, in alternative the suit for possession. 3. The suit was contested by defendant No.7, he took preliminary objections of maintainability, valuation, estoppel, locus-standi and cause of action. He has pleaded sale in his favour by defendants No. 1 to 4 and thus owner in possession of the suit land. The defendant No.6 filed separate written statement and stated that plaintiff was tenant on the suit land. She admitted that plaintiff is owner in possession of the suit land by virtue of adverse possession. The defendants No.1 to 5 filed separate written statement and have raised preliminary objections of maintainability, valuation, limitation, locus-standi and cause of action. It has been stated that defendant Jagdish Ram is owner in possession of the suit land. The plaintiff filed replication and reiterated the case set up by him in the plaint. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has become owner in possession over the suit land by virtue of adverse possession as alleged? OPP 2. Whether the defendants are interfering over the suit land as alleged? OPP 3. Whether the plaintiff is entitled for possession of the suit land if found to be dis-possessed during the pendency of the suit as alleged? OPP 4. Whether the suit is not maintainable as alleged? OPD 3 5. Whether the suit is not properly valued as alleged? OPD 6. Whether the suit is not within limitation as alleged? OPD 7. Whether the plaintiff is estopped to file the suit as alleged? OPD 8. Relief. The issue No.1, 3, 5, 6 and 7 were answered in negative, issue No. 4 in affirmative. Under issue No.2, it has been held that question of defendants interfering over the suit land does not arise. The suit was dismissed by the trial Court on 18.12.1990. The plaintiff filed appeal against the judgment and decree dated 18.12.1990. On 11.5.2000, the learned District Judge framed additional issue: 7-A: Whether the plaintiff is owner in possession of the suit land by way of inheritance? OPP The learned District Judge directed the trial Court to record findings on issue No.7-A after recording evidence of the parties. 5. The trial Court recorded findings on 20.10.2000 on issue No.7-A and held that the plaintiff is not in possession of the suit land nor he was owner thereof. The issue No.7-A was decided against the plaintiff. In appeal, the learned District Judge on 24.11.2000 affirmed the judgment and decree dated 18.12.1990 including the findings on additional issue No.7-A except to the extent that the plaintiff has acquired tenancy rights in respect of five biswas of land comprised in Khasra No.4 which belongs to Smt. Narain Dei defendant No.6. The second appeal has been filed only by defendant No.7 which has been admitted on the following substantial questions of law:- 1. Whether the Distt. Judge could decree the suit to the extent of 1/4th share of Smt. Narain Dei who admittedly had 4 relinquished her rights in the suit land in view of her statement on record of the case? 2. Whether the first appellate court can allow time barred amendment and entire nature of the suit can be changed at appellate stage? 3. Whether the judgment and decree of the learned lower appellate Court is a result of complete misreading and mis- interpretation of the documents and evidence on record. 6. The plaintiff has filed cross-objections in the appeal on 5.12.2001 on the ground that the courts below have erred in dismissing the suit of the plaintiff. The plaintiff was not afforded opportunity to lead evidence on additional plea. The findings of learned Courts below on issues No. 1 to 3 which are against the plaintiff are perverse and based on misreading of oral and documentary evidence. There is no order of admission of cross-objections on the file. 7. I have heard learned counsel for the parties and have also gone through the record. The substantial question of law No.2 is taken up first for determination. The plaintiff in the lower appellate court had filed an application under Order 6 Rule 17 CPC for amendment of the plaint on the ground that Funnu Ram real uncle of the plaintiff was tenant during his life time. After his death, his widow Kagdu inherited the suit land and after her death, the land has come to the plaintiff being only male legal descendant. The defendants could not have inherited the land. The mutations attested to this effect are illegal and void. The defendant No.7Jagdish Ram claims his right through defendants but he has not taken any right from the defendants who themselves have no right in the suit land. The head note of the plaint was also sought to be amended to 5 the effect that in alternative if the plaintiff fails to prove adverse possession he is entitled to the land by way of inheritance being the only male legal descendant and the defendants have not acquired any right, title or interest in the suit land. The plaintiff thus made prayer for amendment of head note, insertion of para 9-A of the plaint and consequently prayer (vi) was sought to be added. 8. Jagdish Ram defendant No.7 who was respondent No.6 in the lower appellate Court contested the amendment application by filing reply that the application is not maintainable at the belated stage, the amendment will change the nature of the cause of action. The plaintiff is not the descendant of Funnu Ram and Kagdu. The learned District Judge observed that the amendment will not change the nature of the suit and allowed the amendment application on 1.1.2000. Thereafter, the written statement was filed by Jagdish Ram to the amended plaint and in reply to para 9-A of the plaint, he has pleaded that he is owner in possession of the suit land. It has been stated that he purchased the suit land vide sale deed dated 22.5.1987. The plaintiff filed replication to the written statement of Jagdish Ram. 9. There is no prescribed period of limitation for filing amendment application. Now after the amendment of Order 6 Rule 17 CPC some restrictions have been imposed for amendment of the pleadings but the amendment of the plaint was allowed by learned District Judge much prior to coming into force of amended provisions of Order 6 Rule 17 CPC. In the reply to the amendment application, plea of limitation has not been taken, however, plea of belated stage of the application has been taken. It has not been pointed out how the amendment application was barred by limitation. In so far as belated stage of the amendment 6 application is concerned, it has not been pointed out what prejudice has been caused to defendant No.7 in view of order of amendment passed by learned District Judge allowing the plaintiff to amend the plaint. In the grounds of appeal, there are general grounds against the order allowing amendment but there is no ground that the amendment has caused prejudice to the defendant No.7. The learned District Judge in the order dated 1.1.2000 while allowing the amendment has observed that amendment will not change the nature of the suit. It has not been shown how the order dated 1.1.2000 has allowed the plaintiff to take time barred plea by way of amendment. The defendant No.7 has failed to substantiate substantial question of law No.2 which is decided against the appellant/defendant No.7. 10. The substantial questions of law No.1 and 3 are interconnected, hence both of them are taken up together for determination. The defendant No.7, who is appellant had not filed any counter-claim in the suit against the plaintiff and defendant No.6 Narain Dei. The suit was dismissed by the learned Senior Sub Judge on 18.12.1990. The dismissal of the suit was accepted by defendants No.6 and 7. The judgment, decree dated 18.12.1990 was assailed by plaintiff Hari Ram in appeal. The appeal of plaintiff Hari Ram, has also been dismissed by learned District Judge on 24.11.2000 while affirming judgment, decree dated 18.12.1990 of the trial Court except to the extent that plaintiff has acquired tenancy rights in respect of five biswas of land comprised in Khasra No.4 belonging to Narain Dei defendant No.6. Narain Dei has not assailed judgment, decree dated 24.11.2000 of the learned District Judge. In absence of counter-claim in the suit, the defendant No.7 has no locus-standi to question the correctness of 7 judgment, decree dated 24.11.2000 on behalf of defendant No.6 when learned District Judge has held that plaintiff has acquired tenancy rights in respect of five biswas of land comprised in Khasra No. 4 which belongs to Narain Dei defendant No.6. 11. In substantial question of law No.1, the question has been raised that District Judge could not allow 1/4th share of Narain Dei who had relinquished her rights in the suit land in view of her statement on record. In other words, defendant No.7 is relying on statement of Narain Dei vide which she has allegedly relinquished her rights in the suit land. At this stage, it is significant to note that on 11.4.2002 the names of respondents No.2 to 13 were ordered to be deleted from the array of the respondents on the statement of learned counsel for the appellant (defendant No.7) subject to all just exceptions. Narain Dei in the appeal was arrayed respondent No.13 but now her name has been deleted from the appeal. Therefore, in absence of Narain Dei, the question cannot be gone into that she relinquished her right in the suit land as claimed by defendant No.7. In fact, on this point in absence of Narain Dei, the appeal filed by appellant (defendant No.7) is incompetent inasmuch as the name of Narain Dei has been deleted from the array of respondents at the instance of defendant No.7. 12. The learned District Judge under point No.2 has recorded reasons in support of finding that the plaintiff had inherited the tenancy right of 1/4th share of Narain Dei in the suit land measuring one bigha comprised in Khasra No.4. It has not been shown how the impugned judgment and decree are based upon misreading and misinterpretation of the documents and evidence on record. The reappreciation of the evidence is not possible in second appeal. The impugned judgment and 8 decree are not shown to be perverse. The substantial questions of law No.1 and 3 are accordingly decided against the appellant. 13. The plaintiff has filed cross-objections. Sub-rule 2 of Rule 22 of Order 41 provides that cross-objections shall be in the form of memorandum and provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. The sub-rule 4 of Rule 22 of Order 41 further provides that where the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. The cross-objections were filed on 5.12.2001. The names of respondents No.2 to 13 were deleted from the array of the respondents on 11.4.2002 in presence of learned counsel for respondent No.1. The position today is that respondents No.2 to 13 including Narain Dei are not on record of the appeal. The appeal has neither been withdrawn nor it has been dismissed in default so that by invoking sub-rule 4 of Rule 22 of Order 41 cross-objections can be heard. 14. The plaintiff filed the suit against seven defendants but on account of deaths the parties swelled, the fact remains that at the time of filing of the second appeal, there were 13 respondents including Hari Ram plaintiff in addition to defendant No.7 Jagdish Ram as appellant but after order dated 11.4.2002 deleting respondents No. 2 to 13, only Hari Ram plaintiff and Jagdish Ram defendant No.7 are left on record and others have been deleted. In these circumstances, the cross-objections filed by plaintiff cannot be considered in absence of other parties, who have been deleted. This apart, nothing has been pointed out in support of the cross-objections that the impugned judgment is the result of misreading and misconstruction of evidence. 9 15. In the cross-objections ground has been taken that the court below after framing the additional issue erred in law in not affording the plaintiff an opportunity to lead evidence. The record of the trial court shows that on 11.9.2000 statement of one PW Hari Ram was recorded and some documents were tendered in evidence and plaintiff closed the evidence. Therefore, the plea raised in the cross-objections that plaintiff was not given an opportunity to lead evidence after framing of the additional issue is incorrect and same is rejected. The plaintiff has failed to establish that the view taken by the learned District Judge is perverse and does not emerge from the evidence on record, hence cross- objections are rejected. 16. The result of above discussion, the appeal as well as cross- objections are dismissed. October 15, 2011 (Kuldip Singh) (GR) Judge.