IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 213 of 2000 Date of Decision : March 22, 2010 Harbans Singh Appellant Versus Kishan Singh Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Pt. Om Parkash Sharma, Advocate, for the appellant. For the respondent : Mr. Ajay Sharma, Advocate, for the respondent. Sanjay Karol, J. (Oral) This appeal filed under Section 100 of the Code of Civil Procedure stands admitted on the following substantial questions of law: 1. Whether the appointment of Commissioner was necessary in order to arrive at just decision of the issue between the parties and the Courts below have wrongly rejected the plea of the Appellant/Defendant. 2. Whether in the absence of proof by the Plaintiff/Respondent that he was owner in possession of the land prior to settlement out of which the land in dispute has been carved out. In absence of such Whether reports of Local Papers may be allowed to see the judgment? 2 evidence the suit of the Plaintiff is liable to be dismissed or not. The respondent is referred to as the ‘plaintiff’ and the appellant is referred to as the ‘defendant’. The parties are real brothers. Plaintiff filed a suit for possession of land comprised in Khewat No. 57 min, Khatauni No. 103 min, Khasra No. 1116, measuring 0-05-96 HM, situated in Mohal Nalot, Tehsil Nurpur, District Kangra, H.P. ( hereinafter referred to as the suit land). The suit was filed on the ground that the plaintiff was recorded as the owner in possession of the suit land since long, but however in the year 1989 defendant planted orange and lemon plants thereupon. On the defendant’s refusal to hand over the possession, plaintiff being a law abiding citizen was left with no option but to file the suit. The suit was resisted by the defendant inter alia on the ground that in fact the suit land was part of original Khasra No. 527 which was owned and possessed by the defendant. During the pendency of the suit the Collector (Settlement) passed an order recording the defendant to be the owner thereof. Based on the pleadings of the parties the trial Court framed the following issues: “1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the defendant dispossessed the plaintiff by encroaching upon the suit land in Khariff 1989 as alleged? OPP 3 3. Whether the suit is not legally maintainable as the defendant is the owner in possession of the suit land? OPD 4. Whether the plaintiff has no locus standi to sue? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the suit land is a part of Khasra No. 527, owned and possessed by the defendant at the spot, as alleged, if so, effect? OPD 6(a). Whether the suit is time barred? OPD 6(b). Whether in the alternative, the defendant was in open, continuous, un-interrupted & hostile possession of the suit land since Jan., 1960, if so, its effect? OPD 6(c). If issue No. 6(b) is proved, whether the defendant has become owner of the suit land by way of adverse possession? OPD 7. Relief.” The plaintiff’s suit was decreed by the learned trial Court in terms of its judgment and decree dated 11.2.1999 passed in Civil Suit No. 32 of 1991, titled as Shri Kishan Singh versus Shri Harbans Singh as under: “RELIEF : In view of my findings on issues No. 1 to 6(C), the suit of the plaintiff is decreed with no order as to costs and the plaintiff is held entitled to recover possession of the land comprised in Khewat No. 57 min, Khatauni No. 103 min, khasra No. 1116, measuring 0- 05-96 HM, situated in Mohal Malot, Tehsil Nurpur, District Kangra, H.P. Decree sheet be drawn-up accordingly and file after completion be consigned to record room.” 4 Assailing the same defendant filed Civil Appeal No. 38- N/XIII/99, titled as Harbans Singh versus Kishan Singh which stands dismissed in terms of judgment and decree dated 7.12.1999 passed by the learned District Judge, Kangra at Dharamshala, H.P. The Courts below, by way of concurrent findings on fact have concluded that plaintiff has been able to prove that upto 1989 he was recorded as the owner in possession of the suit land. Perusal of the record also reveals the said fact. Ext. P1, Ext. P2, Ext. P3 and Ext. P4 being the revenue record (Misal Haqiyat, Khasra Girdawari from the years 1981-82 up to 1984-85) evidently record the said fact. Plaintiff stepped into the witness box and deposed the manner in which the defendant forcibly took over possession of the suit land. That the defendant is in possession thereof could not be disputed. Hence the Courts below rightly came to the conclusion that the defendant had no right, title or interest in the suit land and the plaintiff was entitled to the relief as prayed for. The order passed by the Settlement Officer is not binding on the plaintiff for the simple reason that the defendant deliberately chose not to implead him as a party in the said proceedings. In any event perusal of the same (Ext. D1) does not make the defendant’s case any better. It is not clear from the same that the suit land formed part of old khasra No. 527. The Court below rightly found the material on record to be sufficient to adjudicate the lis between the parties. Hence there was no need to appoint a Local Commissioner for ascertaining the 5 material on the spot. No substantial question of law in fact arises for consideration in the instant case. In my considered view there is no error in the impugned judgment and decree. There is no merit in the appeal and the same is dismissed. (Sanjay Karol), Judge. March 22, 2010 (PK)