IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 350 of 2010. Reserved on: 11.04.2011. Decided on: 28.04.2011. ______________________________________________ Durga Charan Singh and another. … Appellants. Versus Kamal Thakur and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants : Mr. Mohit Thakur, Advocate. For the Respondents : Mr. Romesh Verma, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Shimla in Civil Appeal No.14-S/13 of 2010/2004, dated 30th March, 2010. 2. Material facts necessary for adjudication of this regular second appeal are that the Predecessor-in-Interest of the respondents, Shri Nand Lal instituted a suit in the court of learned 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Civil Judge (Junior Division), Shimla alleging in the plaint that he alongwith appellants/Defendants (hereinafter referred to as “the defendants” for convenience sake) was joint owner in possession of the suit property. On 17.1.1998, a family settlement took place between all the co-owners before the Assistant Collector 1st Grade, Shimla. The family settlement was confirmed by Tehsildar, Shimla and mutations were attested by the Revenue Officer qua respective shares of the parties on 29th December, 2000. According to the family settlement, plaintiff was given 15 biswas land bearing Khasra Nos. 223, 223/1 and 224 to 230 alongwith built up structure. The built up structure is situate over Khasra Nos.227 and 230 in Tutikandi, Shimla. The property is known as ‘Shanti Bhawan’. Prior to family settlement, one room in Khasra No.227 and one room with kitchen and bath room at first floor in Khasra No.230 in Shanti Bhawan were in possession of defendant No.1 and two rooms with kitchen and bath at second floor in Khasra No.230 were in possession of defendant No.2 and as per family settlement, it was settled that the defendants will hand over the vacant possession of the accommodation detailed above to the plaintiff within three months. According to the family settlement, the defendants have got their respective shares from the joint land and they are staying in their own houses which are adjacent to Shanti Bhawan and they have not vacated the accommodation. The plaintiff (Nand Lal) approached the defendants and requested - 3 - them to hand over the vacant possession of the accommodation in question. The land/building was mutated in his favour on 29th December, 2000. It was agreed on the basis of writing dated 30th August, 2001 by defendant No.1 to hand over the vacant possession of the accommodation in his possession to the plaintiff within a short period of one or two months. A legal notice was issued by the plaintiff to defendants on 11th December, 2001. The defendants neither filed any reply to the notice nor handed over vacant possession to the plaintiff. According to the plaintiff, defendants were in unauthorized occupation of the premises in question. They were liable to pay the use and occupation charges with effect from 1st February, 2002. It is in these circumstances that the plaintiff instituted a suit for possession of the premises in question alongwith a decree for recovery of use and occupation charges from 1st February, 2002 till handing over the vacant possession of the accommodation in question at the rate of ` 2,000/- per month. 3. The suit was contested by the defendants. According to them, no family settlement took place between the plaintiff and defendants on 17th January, 1998. According to them, the family settlement has taken place between them in the year 1977 and since then each of the share holders are in occupation and enjoying the peaceful possession of the property allotted to them and a mutation to this effect was also attested in their favour - 4 - during the settlement proceedings. The replication was filed to the written statement filed by the defendants wherein the averments contained in the plaint were reiterated by the plaintiff. Issues were framed by the trial Court on 9th July, 2003. The learned Civil Judge (Junior Division) decreed the suit on 7th October, 2004. Defendants preferred an appeal before the learned Additional District Judge, Shimla. He dismissed the same on 30th March, 2010. Hence, this regular second appeal. 4. Notices were issued to the respondents on 13th August, 2010. Mr. Romesh Verma, Advocate has put in appearance on behalf of the respondents. 5. It appears from the record that plaintiff, Nand Lal has died during the pendency of appeal before the first appellate Court and his legal heirs were brought on record. 6. Mr. Mohit Thakur, learned counsel for the defendants has strenuously argued that both the Courts below have misread and mis-appreciated the oral as well as documentary evidence. According to him, the issues have not been properly framed by the trial Court. According to him, the continuous possession of the defendants on the suit land raises an irrefutable presumption of ownership in their favour. He then contended that the suit has not been properly valued. He also contended that the plaint filed by the plaintiff is in contravention of the provisions of Order 7 - 5 - Rules 1 and 3 of the Code of Civil Procedure. He lastly contended that the suit property was not identifiable. 7. Mr. Romesh Verma, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 8. I have heard learned counsel for the parties and gone through the record carefully. 9. Plaintiff examined four witnesses. Nand Lal, plaintiff has appeared as PW-1. Shri Sant Ram, Ahlmad, Tehsildar(R), Shimla has appeared as PW-2. Raj Kumar, Kanungo, Kasumpti, Shimla has appeared as PW-3. Shri S.S. Dass Vaish, Civil Engineer has appeared as PW-4. Plaintiff has proved on record the copy of mutation Ex.PW-1/A, copy of Misal Hakiat Ex.PW-1/B, Ex.PW-1/C, Ex.PW-1/D, valuation report as Ex.PW-4/A and plan of the building Ex.PW-4/B. He has also proved on record the copy of document vide which new family settlement took place in the year 1998, mark “A”. Defendant No.1 has examined himself as DW-2 and defendant No.2 has been examined as DW-1. 10. According to the plaintiff, the family settlement has taken place on 17th January, 1998 on the basis of which mutation No.6 was attested on 29th December, 2000 vide Ex.PW-1/A. Copy of Misal Hakiat Bandobast is Ex.PW-1/B. DW-3 and DW-4 have admitted their signatures on document mark “A”. The Assistant Collector 1st Grade, Shimla has only recorded the statements of the - 6 - parties with regard to family settlement. Same was attested in presence of the parties on 29th December, 2000. 11. Mr. Mohit Thakur, learned counsel for the defendants has strenuously argued that no family settlement has taken place on 17th January, 1998. According to him, the partition has taken place in the year 1977 vide mark D1/A. However, the same was never confirmed. No mutation has been attested on the basis of alleged partition which took place in the year 1977. Rather, defendant, Durga Charan Singh has admitted his signatures on Ex.PW-1/C on the basis of which the premises were to be handed over to the plaintiff. Ex.PW-1/C is in the form of agreement according to which, defendant No.1 was to hand over the possession of the house situate over Khasra No.230 to the plaintiff within a period of 1/2 months. The building is situate on Khasra Nos. 227 and 230 known as Shanti Bhawan. DW-1, Hari Singh has admitted in his cross-examination that Shanti Bhawan has been allotted to the plaintiff. He has admitted the receipt of notice Ex.PW-1/D. DW-2, Durga Charan Singh has admitted that partition has taken place between the parties and as per the partition, mutation has been attested. There is sufficient material on record to prove that family settlement took place on 17th January, 1998 which led to attestation of mutation on 29th December, 2000 and recording of revenue entries in Misal Hakiat Bandobast Ex.PW-1/B. He has also admitted that a notice Ex.PW-1/D was received by him. - 7 - The plaintiff has also terminated the license given to the defendants. Mark D1/A has not been proved on record by the defendants in accordance with law. The plaintiff has also proved on record the valuation report Ex.PW-4/A issued by PW-4, Shri S.S. Dass Vaish, Civil Engineer. The trial Court has fixed ` 2000/- per month towards use and occupation charges on the basis of Ex.PW- 4/A. There is no merit in the contention of Mr. Mohit Thakur, learned counsel for the defendants that proper issues have not been famed. No objection was taken before the first appellate Court. It was also open to the defendant to move an appropriate application for striking the additional issues. 12. There is also no merit in the contention of Mr. Mohit Thakur, learned counsel for the defendants that the plaint is filed in contravention of the provisions of Order 7 Rules 1 and 3 of the Code of Civil Procedure. The plaint has been filed in conformity with the provisions of Order 7 Rules 1 and 3 of the Code of Civil Procedure. Necessary particulars find contained in the plaint and the property is also identifiable known as ‘Shanti Bhawan’. 13. What emerges from the observations and discussion made hereinabove is that the family settlement has taken place on 17th January, 1998, which was confirmed by the Tehsildar, Shimla and mutation was attested on 29th December, 2000. Revenue entries were incorporated in Misal Hakiat Bandobast Ex.PW-1/B. Defendant No.1 has admitted his signatures on Ex.PW-1/C on the - 8 - basis of which he had agreed to hand over the vacant possession of the suit property to the plaintiff within a period of 1/2 months. Defendants have failed to prove the family settlement in the year 1977. 14. Consequently, in view of the above discussion, there is no merit in this regular second appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma), Judge. April 28, 2011. (sck).