IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 272 of 1997 Reserved on: 16.07.2010 Date of decision: 19.07.2010 Mehar Chand ... Appellant Versus Smt. Kaushalya Devi and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Pt. Om Prakash, Advocate. For the respondents: Mr. P.K. Singh vice Mr. Dushyant Dadwal, counsel for respondent No. 1(a) to 1(e). Mr. Bhuvnesh Sharma, counsel for respondent No. 2. V.K. Ahuja, J. : This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant against the judgment and decree of the Court of learned District Judge, Kangra at Dharamshala, dated 16.6.1997, vide which he affirmed the judgment and decree dated 26.4.1996 passed by the learned Sub Judge Ist Class, Court No. 2, Palampur. 2. Briefly stated, the facts of the case are that original respondent No. 1 Chandu Ram, now represented by his legal heirs, hereinafter referred to as ‘the plaintiff’, filed a suit for possession and for recovery of Rs.18,000/- as against the appellant, who was 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 impleaded as defendant No. 2 and as against proforma respondent No. 2, who was impleaded as defendant No. 1. The plaintiff alleged that he is owner of the shops ‘ABCD’ as shown in the site plan, situated in the land Khasra No. 1425 measuring 0-00-48 Hects. The defendant has occupied the said shops for Store-cum-Sale office for the goods of Co-operative Society-cum-Sale Centre in village Arla. It was pleaded that defendant No. 2 has no right, title or interest in the suit property. The plaintiff approached the defendants number of times to hand over the possession, but it was not handed over, hence the suit filed by the plaintiff for possession as well as for recovery of Rs.18,000/- as use and occupation charges for 3 years with effect from 1.11.1989 to 31.10.1992 at the rate of Rs.500/- P.M. 3. Defendants No. 1 and 2 filed written statement by taking preliminary objections in regard to maintainability, cause of action, non-joinder of necessary parties, limitation etc. On merits, it was pleaded that the plaintiff has no concern with the suit property. It was pleaded that father of defendant No. 2 Bongar Ram constructed two godowns in the year 1968 from his own expenses in the suit land and these two godowns are in possession of defendant No. 2 for the last more than 16 years. Defendant No. 2 being a Secretary of the Society is using the godowns as store of the Society and is in exclusive possession since 1977. The godowns were constructed by defendant No. 2 by spending Rs.40,000/- and there is no relationship of landlord and tenant in between the plaintiff and defendants. 3 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is entitled to the possession of the disputed premises, as prayed for? OPP 2. Whether the plaintiff is entitled to Rs.18,000/- on account of use and occupation of the disputed premises by the defendants, as prayed for? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no cause of action? OPD 5. Whether the suit is barred by limitation? OPD 6. Whether the plaintiff has no locus standi to file the suit? OPD 7. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided Issues No. 1, 3 to 6 partly, in favour of the plaintiff and as against the defendants and findings under Issue No. 2 in regard to Rs.18,000/- claimed, were decided in favour of the defendants and consequently, the suit of the plaintiff for possession was decreed, but in view of the findings under Issue No. 2, the plaintiff was not held entitled to Rs.18,000/- as use and occupation charges claimed by him. 6. On appeal by defendant No. 2, those findings were affirmed and the appeal filed by defendant No. 2 was dismissed. 7. Being aggrieved by the said findings recorded by the learned District Judge, the appellant/defendant No. 2 has come up in second appeal. 8. I have heard the learned counsel for the parties and have gone through the record of the case. 4 9. The submissions made by the learned counsel for the appellant were that the appeal was admitted on two substantial questions of law. The first substantial question of law was that whether the Courts below have gone wrong in decreeing the suit for possession on the basis of tenancy while coming to the conclusion that there exists no tenancy between the parties. The second substantial question of law was that the plaintiff/respondent has failed to substantiate his claim. During the course of arguments, it was pointed out that the Courts below wrongly relied upon the revenue entries, which entries do not show the appellant as a tenant in possession of the shops in dispute. It was also submitted that the plaintiff had also filed the suit for recovery of the amount in question, which findings had been recorded as against the respondent, but since no appeal was preferred, those findings under Issue No. 2 are liable to be affirmed. 10. On the other hand, learned counsel for the respondent had supported the impugned judgment for the reasons given therein. It was submitted that the land below the structure is owned by the respondent, who was rightly held entitled to the relief of possession in his favour. It was also submitted that there is no evidence to establish that the structure was built up by the appellant and, therefore, the appeal is liable to be dismissed. 11. On appraisal of the judgment passed by the learned trial Court, it is clear that the land in question is recorded in the copy of Jamabandi for the year 1988-1989 in the ownership of the State of H.P., while the plaintiff is recorded in the possessory column. The kind of land is Gairmumkin Abadi. Ext. P-11, a copy of Missal Hakiat for the year 1971 also shows that the land was earlier owned by the 5 Gram Panchayat but in possessory column it was entered in the name of the plaintiff and the kind of land is Gairmumkin Abadi. 12. A perusal of Ext. P-10, certified copy of the order passed by A.C. Ist Grade dated 18.4.1985 shows that A.C. Ist Grade recommended for regularization of the encroachment and dropping the proceedings under Section 163 of the H.P. Land Revenue Act against the plaintiff. On the other hand, the defendant had exhibited the copies of the Resolutions of Co-operative Society, Arla. A perusal of the copy of Resolution Ext. DW1/A shows that the plaintiff had given his shop to the Society and if the Society wants to continue its work in his shop, a rent deed should be executed. A perusal of the Resolution Ext. DW1/B shows that now the work of Salesman of Society shall be done by Mehar Chand, defendant No. 2. 13. From the above discussion, it is clear that the plaintiff was claiming ownership of the disputed premises and his name figured in the posessory column since the time Gram Panchayat was the owner and then the ownership vested in the State of H.P. The order passed by A.C. 1st Grade referred to above also shows that his possession over the disputed premises was admitted and recommendation was made for the regularization of the encroachment. A perusal of the other documents on record shows that the defendant No. 2 had not claimed himself to be the owner of the disputed property at any time, rather the evidence shows that defendant No. 2 was a salesman of the society and the premises were already in possession of the society, to which a reference has been made in the above mentioned resolution. Defendant No. 2 became Secretary in the year 1997, who has claimed 6 to be the possession of the disputed premises since 1977. The defendant claims to have constructed the shop in the year 1982 by spending Rs.40,000/-, but he claims to have got the electricity fittings in the year 1979, about which there is no evidence as to how he could have got the electric fittings done in the year 1979. The learned trial Court on the basis of the evidence led by the parties had come to the conclusion that the defendant became the Secretary of the society in the year 1978 and not the salesman and accordingly, it rightly has come to the conclusion that the plaintiff was the owner of the land in question and was entitled to the possession. The defendants had failed to prove that they built the structure and they built it out of some right and as such, the plaintiff having possessory title over the land in question was rightly held entitled to possession. Those findings of fact are based upon the oral as well as documentary evidence have been affirmed by the learned District Judge on appeal and no infirmity could be pointed out in the findings so recorded by both the Courts below for reappraisal of the evidence in question. The appeal had been admitted on substantial questions of law mentioned above, but when no case is made out for reappraisal of the evidence, this Court sitting in appeal cannot reconsider the evidence and findings of fact recorded by both the Courts below, calls for no interference by this Court. In regard to the question that no appeal was filed by the plaintiff in regard to the findings as against him vide which he was not held entitled to Rs.18,000/-. Those findings had not been assailed by the plaintiff by filing Cross Objections and these cannot be considered at this stage and are liable to be affirmed. No infirmity could be pointed out in the findings recorded by the Courts below vide which any oral or 7 documentary evidence was not considered or was wrongly considered by the Courts below. 14. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is liable to be dismissed and the same is accordingly dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), July 19, 2010 Judge (BSS)