1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 364 of 1996 Judgment Reserved on: 6.3.2009 Date of decision: 13.3.2009. Villagers of villages, Runpu etc. through Hari Dass Lambardar and Ors. ….. Appellants Vs. Zimidaran of village Tranda & another through Ganga Singh and Ors. … Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Rakesh Jaswal, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate vice Ms. Devyani Sharma, Advocate. Kuldip Singh, Judge. The appellants have come in appeal against judgment, decree dated 30.9.1996 passed by learned District Judge, Kinnaur at Rampur Bushahr in Civil Appeal No.56-R/13 of 1995/94 confirming judgment, decree dated 30.12.1993 passed by learned Senior Sub Judge, Kinnaur, District at Recong Peo in Suit No.15/1 of 91. 2. The facts, in brief, are that 256 Zamidars of village Tranda and Chaura, Pargna 18/20, Tehsil Nichar Distt Kinnaur had filed a suit against appellants villagers of villages Runpu, Bhagwat, Pithvi, Pargana 6/20, Tehsil Rampur Bushahr, District Shimla for declaration that they had Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 been exercising their customary rights of grazing their cattle, sheep and goats in pastures locally known as Sarkun Dhar, Phulyari Dhar, Ghundli, Tirmi Dhar, Bhagantu Dhar, Bahl Dhar and Diyoli Dhar exclusively to the exclusion of appellants continuously, peacefully and without interruption since time immemorial. The appellants have no right to graze their cattle, sheep and goats in the said pastures, with a prayer for prohibitory injunction restraining the appellants from interfering with the customary rights of the respondents. 3. The case of the respondents in brief is that aforesaid pastures are situated in Pargana 18/20 of Tehsil Nichar, Distt Kinnaur. The pastures are owned by the State of H.P. The respondents had been exercising their exclusive right of grazing their cattle, sheep and goats from the time of their forefathers without any interruption. The appellants belonged to Tehsil Rampur Bushahr, Distt Shimla. In the revenue settlement in Kinnaur in the year 1977 the appellants for the first time claimed and asserted their rights of grazing cattle, sheep and goats in the aforesaid pastures. They applied to the Settlement Officer, Kinnaur to record their rights of grazing in Naksha Bartan of the record of rights and obtained an order recording their grazing rights in the Naksha Bartan by producing false and misleading evidence. The order of Settlement Officer dated 6.12.1983 is wrong, illegal, against the facts and inoperative qua the rights of the respondents and is liable to be set aside. The appellants on the basis of said wrong order of the Settlement Officer have started invading and threatened to invade the respondents’ rights of grazing in the said pastures. The area of pastures is barely sufficient for the cattle of the respondents, hence, the suit was filed by the respondents. 3 4. The appellants contested the suit by claiming that the pastures in the suit were part of the erstwhile Bushahr State to which the parties belong. The villagers of villages Runpu, Bhagwat, Kinnur, Pithvi have exclusive and customary rights to graze their cattle over the pastures. The rights of the appellants have been recorded by the Settlement Officer after due inquiry. They have denied that appellants have obtained the order on false, misleading evidence. The suit pastures are hardly sufficient for the cattle, sheep and goats of the appellants and if the respondents are allowed to graze their cattle, sheep and goats then the appellants would suffer irreparable loss. 5. The following issues were framed by the learned trial Court:- 1. Whether the provisions of order 1 Rule 8 CPC have not been complied with, if so, its effect? OPD 2. Whether this court has no jurisdiction to try this suit? OPD 3. Whether the plaintiffs have got exclusive customary rights of grazing in the suit pastures ? OPP 4. Whether the defendants are interfering with the right of the plaintiffs i.e. right of grazing in the suit pastures? OPD 5. Relief. 6. The issues No.1 and 2 were answered in negative and issues No.3 and 4 in affirmative and the suit was decreed on 30.12.1993. The judgment, decree dated 30.12.1993 has been upheld by learned District Judge, Kinnaur on 30.9.1996. Hence this appeal, which has been admitted on the following substantial questions of law:- 1. Whether both the courts below have overlooked and ignored material evidence and 4 misread and misconstrued the oral and documentary evidence on the record ? 2. Whether both the courts below have erred in ignoring the Wazib-Ul-Arz to which presumption of truth is attached ? 3. Whether the suit is bad for non-joinder of necessary party? 7. I have heard Mr. Rakesh Jaswal, learned counsel for the appellants and Mr. Ramakant Sharma, learned counsel for the respondents and have also gone through the record. The learned counsel for the appellants has fairly submitted that though the appeal has been admitted on the aforesaid substantial questions of law but substantial questions of law No.1 and 2 are interconnected and there is no plea in the written statement that the suit is bad for non-joinder of necessary party. He has, however, submitted that the two Courts below have misconstrued and misinterpreted the Wazib-Ul-Arz Ex.DW-8/A and have erred in decreeing the suit of the respondents. The learned counsel for the respondents has submitted that Pargana 6/20 and Pargana 18/20 are different Parganas. The Wazib-Ul-Arz Ex.DW-8/A is of Pargana6/20. The appellants have miserably failed to establish their rights in Pargana 18/20 and two Courts below have recorded a finding of fact while accepting the case of the respondents. He has submitted that no substantial question of law is involved in the appeal. Substantial questions of law No.1 to 3 8. The substantial questions of law No.1 to 3 are taken up collectively for discussion in view of limited controversy involved in the appeal. The appellants have not filed complete copy of impugned judgment in as much as page-14 of the impugned judgment was not filed 5 with the appeal. It appears this page was not supplied to the appellants by Copying Agency. I have otherwise gone through the impugned judgment from the lower appellate Court file. There is no plea in the written statement that the suit is bad for non-joinder of necessary party nor there is an issue to this effect. In the second appeal the question that the suit is bad for want of necessary party cannot be permitted to be raised. In these circumstances the substantial question of law No.3 is decided against the appellants. 9. The learned counsel for the appellants in support of substantial questions of law No.1 and 2 has submitted that Wazib-Ul-Arz Ex.DW-8/A has been misconstrued and misinterpreted by the two Courts below and therefore, impugned judgment, decree are not sustainable. At the time of hearing it has not been denied that respondents belong to Pargana 18/20, Tehsil Nichar, Distt Kinnaur and appellants belong to Pargana 6/20, Tehsil Rampur Bushahr, Disitt Shimla. The two Parganas are separate. In order to succeed the appellants will have to show that they have right as per their defence in Pargana 18/20, Tehsil Nichar, Distt Kinnaur. DW-8 Ishwar Dass in his cross-examination has stated that disputed pastures right from the very beginning are in Chak Tranda. He has further stated that 6/20 has separate Wazib-Ul-Arz and respondents have also separate Wazib-Ul-Arz. He has also stated that in forest settlement their rights are not recorded in the pastures in dispute and therefore, they filed an application for recording their rights in the settlement. DW-8 has thus clearly stated that Wazib-Ul-Arz of parties are different. Ex.DW-8/A is the Wazib-Ul-Arz of Pargana 6/20 belonging to appellants. In order to prove their right in disputed pastures the appellants will have to prove their rights in Pargana 18/20, which 6 appellants have failed to establish. In these circumstances Wazib-Ul-Arz Ex.DW-8/A of Pargana 6/20 is of no help to the appellants and they cannot take any assistance from this document. The two Courts below have rightly considered and appreciated Wazib-Ul-Arz Ex.DW-8/A. PWs 2 to 8, Forest Rangers who were posted in Tranda range have stated that respondents have exclusive right over the disputed pastures and they have never seen appellants grazing their cattle on these pastures. PWs 2 to 8 are independent witnesses and there is no reason to disbelieve them. The respondents have established their exclusive right on the disputed pastures and two Courts below have recorded a concurrent finding of the fact regarding the rights of the respondents. The appellants have miserably failed to prove mis-construction and mis-appreciation of the oral and documentary evidence more particularly Wazib-Ul-Arz Ex.DW-8/A by two Courts below. The substantial questions of law 1 and 2 are thus decided against the appellants. 10. No other point was urged. 11. The result of above discussion, the appeal fails and is accordingly dismissed. No order as to costs. ( Kuldip Singh ) Judge March 13, 2009 (sks)