IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 24 of 1999. Reserved on:17.4.2009. `Decided on: 6.5.2009. __________________________________________________ Milap Chand and others. … Appellants. Versus Harnam Singh and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. R.K. Gautam, Senior Advocate with Mr. Arun Kumar, Advocate. For Respondents No. 1 & 2 : Nemo. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 28.8.1998 passed by the learned Additional District Judge, Kangra at Dharamshala in Civil Appeal No. 19-P/96. Brief facts necessary for adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for declaration, permanent injunction and recovery against the appellants- defendants (hereinafter referred to as the defendants for convenience sake). As per averments contained in the plaint, the plaintiff was owner in possession of the suit shop since the time of his 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 forefathers. It is alleged that he had inducted proforma defendant- Shri Jagdish Singh as tenant in the suit shop at monthly rent of Rs. 5/-. His property was being looked-after by his sister in his absence. Defendants No.1 & 2, Shri Milap Chand and Shri Khazana Ram obtained an ex-parte decree for possession by ejectment against defendant No.3 in case No. 33 of 1984/39 of 1984 on 15.9.1984. He came to know about the same in the year 1989 from Shri Jagdish Singh. It is further alleged that Shri Mangat Ram, son of Shri Riffer, father of defendant No.2-Shri Khazana Ram, had filed suit No. 51/67, titled Mangat Ram Vs. Beli Ram alias Harnam Singh, son of Kihru Ram, for possession of the present suit land by demolition of construction standing thereon. The suit was dismissed vide judgment dated 17.9.1970. According to the plaintiff, the defendants knew about this judgment. According to him, judgment dated 15.9.1984 is a nullity and not binding on the plaintiff and proforma defendant-Jagdish Singh. Defendant No.3 was proceeded against ex-parte vide order dated 16.4.1990. The suit was contested by the defendants. On merits, it is alleged that the plaintiff was never owner in possession of the said shop and he is not entitled to the suit land and shop which was under their possession. It is admitted by them that the suit land was recorded as “Abadi” land and entries in the record are also correct. According to them, they had inducted Jagdish Singh as tenant. The suit was decreed by the Senior Sub Judge, Dharamshala on 31.8.1995. The defendants except proforma defendant No.3 filed an appeal before the learned Additional District Judge, Kangra at Dharamshala. He dismissed the same on 3 28.8.1998. This regular second appeal is directed against the judgment dated 28.8.1998. This regular second appeal was admitted on the following substantial question of law: “Whether the failure of the trial Court in not framing issue regarding the ownership of the suit property has resulted in prejudice and injustice to the defendants?” Mr. R.K. Gautam, Senior Advocate has strenuously argued that it was necessary for the trial Court to frame issue with regard to ownership of the suit property. According to him, non-framing of this issue has resulted in grave mis-carriage of justice. The contesting respondent-plaintiff was proceeded against ex-parte vide order dated 9.8.2000. Respondent No.2 was served on 12.12.2000. He is not represented by any Advocate. I have heard Mr. R.K. Gautam, Senior Advocate and perused the record carefully. The case of the plaintiff in nutshell was that he was owner in possession of the suit shop and land and he had inducted Jagdish Singh as a tenant in the suit shop at monthly rent of Rs. 5/-. He was employed in the Army. His property was being looked-after by his sister. He had produced in evidence copy of Jamabandi for the year 1957-58 (Ext. PA), copy of Missal Hakiat for the year 1961-62 (Ext. PB), copy of Jamabandi for the year 1966-67 (Ext. PC), copy of missal hakiat for the year 1976-77 (Ext. PD), copy of Jamabandi for the year 1986-87 (Ext. P1) and copy of Shajra Kistwar prepared in the year 1976 (Ext.P2). A bare perusal of all the revenue entries including Ext. DA reveals that the land comprised in Khasra No. 684 regarding a portion of which the suit has been filed, 4 corresponded to pre-settlement Khasra No. 173 and earlier pre- settlement Khasra No. 141. The nature of the suit land is described as “Abadi Tika” in the column of ownership as well as in the column of possession. PW-1 had also produced in evidence copy of plaint in Civil Suit No. 51/67 instituted on 24.2.1967, titled Mangat Ram versus Beli alias Harnam decided on 17.9.1970. The present plaintiff was defendant in this suit. He has also placed on record copy of judgment (Ext. P5) and copy of decree sheet (Ext. P6) passed in Civil Suit No. 51/67. The copy of judgment (Ext. P5) establishes that father of defendant No.2-Khazana Ram and proforma defendant No.6, namely; Govind Ram had filed a civil suit against the plaintiff for possession. Shri Mangat Ram was the father of defendant No.2 and proforma defendant No.6. He had filed a suit against the plaintiff for possession of land measuring 20’ x 17’ out of Khasra No. 173 (old) which correspond to new Khasra No. 684. The plaintiff, who was defendant in Civil Suit No. 51/67, had taken a specific plea that the said land was in his ownership and had raised construction. The suit filed by the father of defendant No.2 and proforma defendant No.6 was dismissed. The plaintiff was found to be the owner in possession of the disputed land. Accordingly, the ownership of the plaintiff on the land measuring 20’ x 20’ out of land comprised in Khasra No. 684 corresponding to old Khasra No. 173 measuring 0-13-84 hectares stood determined. The defendants have failed to prove that the land was ever transferred to them by the plaintiff. The identity of the suit land stood determined as per averments contained in the plaint and on the basis of the decree drawn. 5 The plaintiff has led tangible evidence to prove his ownership over the suit land, as described hereinabove, on the basis of judgment rendered by the trial Court in Civil Suit No. 51/67 vide judgment dated 17.9.1970. The defendants could not prove their ownership over the suit land. The plaintiff was not added as a party in Civil Suit No. 33 of 1984/39 of 1984 decided on 15.9.1984. In fact, Jagdish Singh was proceeded against ex-parte. His application for setting aside ex-parte order was dismissed vide order dated 11.10.1991. The controversy in the present suit was with regard to ownership of the suit land. The parties knew what the case was and they led evidence. In view of the plaint and the written statement filed by the contesting defendants, the trial Court had correctly framed the issues. It is no more res integra that if the parties knew about their case and have led evidence, it may not be necessary in every case to frame issue. As noticed above, the only controversy was whether the plaintiff is owner of the suit land or is he bound by the judgment rendered in Civil Suit No. 33 of 1984/39 of 1984 decided on 15.9.1984. The plaintiff and defendants were aware of the issue and have led evidence. Their Lordships of the Hon’ble Supreme Court in Nedunuri Kameswaramma versus Sampati Subba Rao, AIR 1963 Supreme Court 884 have held as under: “Since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could 6 not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion.” Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. May 6, 2009. (cr)