IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.128 of 1997. Judgment reserved on: 10.7.2008 Date of decision: 16th July, 2008. Bansi Lal ....Appellant -Versus- Hira Singh and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta,Judge. Whether approved for reporting? No For the Appellant: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate For Respondents: Mr.Satyen Vaidya, Advocate. Mr.Ratish Sharma, counsel for R-8. Deepak Gupta, J. This Regular Second Appeal was admitted on the following Substantial Questions of Law: “i) Whether on account of mis-reading and mis-appreciation of the pleadings, the findings as recorded by the Courts below are vitiated? ii)Whether the points for determination and issue arising out of the pleadings of the parties have not been determined and thus, the courts below have failed to exercise jurisdiction and injustice has been caused to the appellant? iii)Whether there has been mis-reading and mis-appreciation of the oral and documentary evidence as produced by the appellant? iv)Whether the plea of custom has been ignored by the Courts below which has caused injustice to the appellant?” Brief facts of the case are that the appellant (hereinafter referred to as the plaintiff) filed a suit that he is in possession of land bearing khasra Nos.2072/2 measuring 23 bighas 9 bishwas situated 2 in Chak Gagna, Pargna Jakholi, Tehsil Chopal. According to the plaintiff he, as a matter of right, for the last 20 years was cutting grass out of this land and using the same for his own use. He prayed that the defendants who are the residents of the area be restrained from entering upon the suit land and grazing their cattle thereupon. The facts giving rise to the dispute were that the plaintiff purchased land in village Thalog from one Kartar Singh. This land had been purchased by Kartar Singh from one Rangi Ram. According to the plaintiff as per the “Wazab-Ul-Arz” for the area the person who is in possession of a particular portion of the Ghasni can use the same exclusively and no other person has a right to use the same. The person in exclusive possession of the ghasni has also the right to transfer his right in the Ghasni to any other person. It is urged that all the Estate holders are in possession of separate portions of the ghasni. The defendants contested the suit on various grounds. The main ground taken was that neither the plaintiff nor his predecessors in interest Kartar Singh and Rangi Ram were ever in exclusive possession of khasra No.2072/2. It is further contended that all the villagers of the area have been grazing their cattle over khasra No.2072/1 of which khasra No.2072/2 is a part. Admittedly the State is recorded as owner of the suit land. It was impleaded as a party and the stand of the State is that all the Estate right holders have a right to graze cattle in the land. 3 The learned trial Court dismissed the suit holding that the plaintiff had failed to prove that either he or his predecessors were in exclusive possession of the suit land. The plaintiff filed an appeal before the learned lower Appellate Court and during the pendency of the said appeal the plaint was amended and another plea was raised that the plaintiff has been in hostile possession of the land continuously and openly for almost 60 years. Thereafter, evidence was again led. The learned lower Appellate Court has also dismissed the appeal. Hence, the present second appeal. I have heard Sh.G.D. Verma, learned senior counsel for the appellant and Sh.Satyen Vaidya, learned counsel for the respondents and have gone through the record of the case. Admittedly, the plaintiff Bansi Lal purchased some land vide sale deed Ext.PW-6/B. This land was purchased from Kartar Singh. A perusal of the said sale deed shows that what has been sold is land measuring 16 bighas 3 bishwas situated in Mauza Thalog. There is also a stipulation in the sale deed that the transferor had transferred all rights, title and interest in the land which is the subject matter of the sale deed i.e. Khasra No.1328/10 measuring 16 bighas 3 bishwas along with all easements, appurtenances, trees, bushes and structures of the vendee. There is also one line in the sale deed that the vendor has also put the vendee in the possession of the Ghasni situated in Chak Gagna/Thalog. The plaintiff has proved on record a “Wazab- Ul-Arz” PW-2/A. Its translation has not been proved on record but 4 during the course of the hearing, I in the presence of the parties had taken the assistance of Sh.H.K. Bhardwaj, learned counsel of the Court who had translated the same. The gist of the “Wazab-Ul-Arz” is that wherever any Estate holder is in possession of the specific portion of the Ghasni he can sell/mortgage the same. He also has a right to cut grass from the said Ghasni without obtaining any permission of the State and without paying any license fee. It is obvious that to establish his claim on the Ghasni the plaintiff was required to prove that he and his predecessors had been in exclusive possession of the Ghasni. No doubt the plaintiff and his witnesses have tried to prove that the plaintiff and before him Kartar Singh and Rangi Ram were in possession of the Ghasni. Kartar Singh had only purchased the land a few years before Bansi Lal. Rangi Ram who was the original owner was produced in the witness box. The defendants also examined a number of witnesses. Both the Courts below on appreciation of evidence have come to the conclusion that the plaintiff has failed to prove that he or his predecessors were in exclusive possession of the Ghasni land. This is a pure finding of fact and it cannot be said to be based on mis- appreciation or misreading of the evidence. A finding of fact whether right or wrong cannot be interfered in second appeal unless it is shown to be perverse. After going through the entire evidence it is apparent that both the Courts below have appreciated the evidence in its right perspective. 5 I am also of the view that the plaintiff has failed to prove on record how the “Wazab-Ul-Arz” is applicable to the present case. A “Wazab-Ul-Arz” is prepared at the time of settlement and the entries in the same hold good only during the period of settlement and become inoperative when the settlement comes to an end that is when a fresh settlement takes place. Reference in this behalf is made to Chhote Khan and others vs. Mal Khan and others, AIR 1954 SC 575. In the present case PW-2 who proved the “Wazab-Ul-Arz” has been unable to give the date on which these entries were recorded in the “Wazab-Ul-Arz”. He has failed to give any indication as to when the settlement took place. In the absence of such material on record it cannot be said whether the “Wazab-Ul-Arz” is still in force or not. Lastly, the case of the plaintiff himself seems to be only that the estate holders of village Gagna have a right to use the Ghasni land situated in Chak Gagna. The land which he purchased from Kartar Singh is in village Thalog. Therefore, he himself cannot claim any right in the Ghasni in Chak Gagna to the exclusion of the others. In view of the above discussion, the Questions 1 and 3 framed above are answered by holding that there has been no misreading and mis-appreciation of pleadings or evidence. Question No.2 is answered by holding that all the points arising for determination have been decided. As far as question No.4 is concerned the same 6 does not arise at all. No custom was pleaded or proved before the Courts below. The plea of the plaintiff was based on the entries in the “Wazab-Ul-Arz” which have been dealt with by all the Courts. From the entire facts and circumstances mentioned hereinabove, it appears that the plaintiff has failed to prove his case and therefore the appeal is dismissed. No order as to costs. July 16, 2008. ( Deepak Gupta ), PV Judge