IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 278 of 2002. Date of decision: 16.12.2011. Dalip Singh son of Shri Basaku resident of village Bushehar, Illaqua Balh, Tehsil Sadar, District Mandi, H.P. ….. Appellant/ plaintiff. Vs. 1. Narain Singh son of Shri Hari Chand 2. Smt. Shakuntla Devi wife of Sh. Narain Singh 3. Thakur Singh son of Shri Missaru Ram, All residents of village Bushehar, Illaqua Balh, Tehsil Sadar, District Mandi, H.P. 4. Shri Bhagat Ram son of Mahesh Kumar son of Tahya Ram, resident of village Karnehar, Illaqua Balh, Tehsil Sadar, District Mandi, H.P at present at village Bushehar, Illaqua Balh, Tehnsil Sadar, Distt. Mandi. …. Respondents/ defendants. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. B.K. Malhotra, Advocate. Kuldip Singh, Judge (Oral). The plaintiff has come in second appeal against the judgement, decree dated 1.4.2002 passed by learned Addl. District Judge, Mandi in Civil Appeal No. 7 of 2001 reversing the judgement, Whether the reporters of the local papers may be allowed to see the Judgment? …2… decree dated 25.10.2000 passed by learned Sub Judge Ist Class, Court No. 2, Mandi in Civil Suit No. 342/99/96. 2. The facts in brief are that appellant had filed a suit for permanent prohibitory injunction against the respondents regarding land comprised in khasra No. 91, measuring 1-17-10 bigha, situated in Mohal Bushehar/194, Tehsil Sadar, District Mandi (for short, suit land). The appellant claimed himself owner in possession of the suit land. It has been stated that respondents have no right, title or interest in the suit land and they interfered in the possession of the appellant over the suit land, and, therefore, the suit was filed. 3. The respondents contested the suit and filed a joint written statement. They have taken preliminary objections of estoppel, cause of action, maintainability and res- judicata. On merits, it has been stated that suit has been filed as counterblast to the earlier suit filed by respondent No. 1 against the appellant, which is pending. The respondents denied the allegation of interference over the suit land. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 2. Whether the present suit is hit by section 10 CPC? OPD. 3. Whether the plaintiff has no cause of action to file the present suit? OPD. 4. Whether the plaintiff is estopped to file the suit by his own act, deed and conduct? OPD. 5. Whether the suit is not maintainable? OPD. …3… 6. Relief. The issue No. 1 was answered in affirmative and issues No. 2 to 5 in negative and the suit was decreed by the trial court on 25.10.2000. In appeal, the learned Addl. District Judge on 1.4.2002 allowed the appeal, set-aside the judgement and decree of the trial court and dismissed the suit, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the impugned judgement and decree is the result of complete non- consideration of the statement of PW-3 and DW-1 as well as the document Ext. PW 3/A demarcation report and Ext. PW-3/C statement of respondent No. 1? 2. Whether the learned lower appellate Court is right in not discussing and taking into consideration the pleadings of the parties as well as the documentary evidence in the nature of Ext. PW 1/A, PW 3/A to D? 3. Whether the learned lower Appellate Court is right in not giving any reasons from differing with the categoric findings recorded by the learned trial court as is required of it in view of the law laid down by the Apex Court in State of Rajasthan v. Harphul Singh? 5. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the appellant that Addl. District Judge has misconstrued, misinterpreted the evidence on record in returning the finding that respondents are in possession of land comprising in khasra No. 91/1 measuring 0-1-4 bigha out of the suit land. It has been submitted that …4… DW 1 in his statement has stated that he has vacated the encroachment over the suit and. In the teeth of admission of DW 1 there is no question of possession of respondents over the suit land. The Additional District Judge has erred in dismissing the suit. The learned counsel for the respondents has submitted that in demarcation report dated 5.10.1997 Ex. PW 3/A (actually exhibited as DW 3/A), it has been found that respondents are in possession of 0- 1-4 bigha of suit land. Once the respondents are in possession of any part of suit land, the suit for permanent prohibitory injunction is not maintainable. No fault can be found with the impugned judgement, decree. 6. The substantial questions of law No. 1 to 3 are interconnected, therefore, all of them are taken up for determination collectively. The appellant has filed the suit for permanent prohibitory injunction. In the plaint, it has been pleaded that appellant is owner in possession of the suit land. In the written statement filed by the respondents, there is no plea that any portion of the suit land is in possession of the respondents. The respondents have also denied interference over the suit land. In jamabandi/ missal hakiyat for the year 1994-95 Ex. PW 1/A khasra No. 91 is recorded in the ownership and possession of appellant. 7. In demarcation report dated 5.10.1997 the respondents were found in possession of 0-1-4 bigha of land out of the suit land. The demarcation was carried out at the instance of respondents No. 1, who filed the application for demarcation of land before the Assistant Collector. The demarcation was carried out by PW 3 Amar Chand, …5… Field Kanungo. It is not clear whether demarcation report dated 5.10.1997 was accepted or rejected by the Assistant Collector. The fact remains that as per demarcation report, the respondents were found in possession of land measuring 0-1-04 bigha of land. 8. DW 1 Narain Singh in his statement recorded on 22.9.2000 has stated that he obtained the demarcation of his land and during demarcation some land of the appellant was found in his possession, which he vacated on the date of demarcation. He has not encroached any land of the appellant. The statement of respondent No. 1 is after the demarcation report dated 5.10.1997. Therefore, even if in the demarcation report dated 5.10.1997, it has come that respondents are in possession of land measuring 0-1-4 bigha out of the suit land, that encroachment was vacated by respondent No. 1 on the date of demarcation as per his statement recorded on 22.9.2000. Thus, it can be safely concluded that no part of the suit land is in possession f the respondents. The finding recorded by the Additional District Judge that respondents are in possession of land measuring 0-1-4 bigha comprised in khasra No. 91/1 is liable to be set-aside. 9. The appellant has asserted that respondents are interfering in his possession over the suit land. On the other hand, the respondents have taken the stand that they are not interfering on the suit land. DW 1 has very clearly stated that land of appellant found in his possession during demarcation was vacated by him on the date of demarcation. The stand of respondents regarding the fact that they are not interfering over the suit land appears to be more …6… reasonable and probable. The substantial questions of law No. 1 to 3 are decided to the effect that appellant is owner in possession of the entire suit land, but he has failed to prove interference over the suit land by the respondents. 10. No other point has been urged. 11. In view of above discussion, the appeal is dismissed but it is made clear that appellant is owner in possession of the suit land. No costs. December 16, 2011. ( Kuldip Singh ), (Hem) Judge.