IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 633 of 2007 Judgment reserved on26.6.2008 Date of Decision: July 30, 2008. Ramesh Chand ..Appellant. Versus. Naresh Kumar ..Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant(s): Mr. Ajay Sharma, Advocate. For the Respondent(s): Mr. H.K.Bhardwaj, Advocate. Deepak Gupta, J This regular second appeal is directed against the judgment of the learned District Judge, Una who dismissed the appeal filed by the appellant ( hereinafter referred to as the defendant ) and upheld the judgment and decree passed in favour of the respondent (hereinafter referred to as the plaintiff). Briefly stated the facts of the case are that the plaintiff filed a suit for declaration to the effect that he is owner in possession of the land measuring 0-00-16 hectares bearing khewat No.111min, khatoni No.183, - 2 - khasra No.1430 (suit land “A”) and entries showing the defendant in possession of the same pursuant to the order dated 9.5.1989 passed by the Naib Tehsildar (Settlement) are wrong and ineffective. It was also prayed that the defendant be restrained from interfering in the possession of the plaintiff and in the alternative a prayer for possession of the suit land has been made. In addition thereto, the plaintiff prayed that the defendant be restrained from, in any manner, interfering in his possession over the other area measuring 0-00-60 hectares bearing khewat No.111 min, khatoni No.181 min, khasra No. 1427, 1428 and 1429 ( suit land “B”). According to the plaintiff though the suit land is in his possession, the defendant in connivance with the Naib Tehsildar (Settlement) obtained an order on 9.5.1989 showing the defendant to be in possession of the suit land “A”. It was also alleged that the defendant is trying to interfere in the suit land “B”. The defendant contested the suit. According to the defendant, he had acquired title over the suit land “A” by way of adverse possession and according to him, the order dated 9.5.1989 is correct. - 3 - On the pleadings of the parties, following issues were framed:- 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 plaintiff is entitled for the relief of injunction as prayed? OPP 3. Whether the suit is not maintainable in the present form, as alleged? OPD 4. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD 5. Whether the defendant has become owner in possession of the suit land by way of adverse possession? OPD. 6. Relief. All the issues were decided in favour of the plaintiff and against the defendant and the suit was decreed. The learned trial Court on the basis of the oral evidence and Missal Haquiyat Ex. P1, copy of jamabandi Ex.P2 and copy of khasra Girdawari Ex.P3 came to the conclusion that the plaintiff is owner in possession of the entire suit land. The trial Court came to the conclusion that the claim of the defendant that the suit land is Abadi is not supported by any documentary evidence. It is only in the year 1988-89 that an entry was made in favour of the defendant showing him in possession of the suit land “A” wherein the said suit land was described as Gair Mumkin - 4 - Abadi. It was further held that the order dated 9.5.1989 allegedly passed by the Naib Tehsildar (Settlement) had been passed behind the back of the plaintiff and no notice was given to the plaintiff before passing this order. Even the copy of the order had not been placed on record. On the basis of the evidence, the trial Court came to the conclusion that the plaintiff is owner in possession of the entire suit land and granted a decree as prayed for. The appeal of the defendant was dismissed by the lower appellate court who considered the entire evidence all over again and came to the conclusion that the plaintiff is the owner in possession of the suit land. The main ground raised by Shri Ajay Sharma learned counsel for the appellant/defendant is that the appellant is in possession of the suit land and that the Naib Tehsildar (Settlement) had passed the order dated 9.5.1989 during the course of settlement operations and the order was not passed behind the back of the plaintiff. It is also urged that the learned trial Court gravely erred in dismissing the application under Order 26 rule 9 CPC for appointing the Local Commissioner. In support of his contention Shri Ajay Sharma has also relied upon judgments of this Court in - 5 - 2002(3) Shim. LC 131 Bali Ram versus Mela Ram and another and Latest HLJ 2006 (HP) 5 Prithi Singh versus Bakshi Ram and another. The trial Court rejected the application under Order 26 rule 9 CPC by holding that no local commissioner was required to be appointed in this case since there was sufficient evidence and material on record to show who was in possession of the suit property. I have gone through the order of the learned trial Court and found that the issues were settled as far back as on 18.5.2000. Parties led evidence and the matter was listed for arguments on a number of dates in the month of April and May, 2004 and it is only on 27.4.2004, when an application under Order 26 rule 9 CPC was filed. The learned trial Court also held that one of the witnesses produced by the defendant had admitted that the suit land is lying vacant at the spot. Therefore, the learned trial Court held that the application had been moved mala fide and there was no need to appoint a Local Commissioner. I find no error in the order of the learned trial Court rejecting the application for appointment of Local Commissioner. - 6 - Both the courts below have given concurrent findings of fact. No question of law much less a substantial question of law arises in the appeal which is accordingly rejected. July 30, 2008 ( Deepak Gupta ), J. s.