Whether reporters of the Local Papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. R. S. A. No. 29 of 2001. Decided on: September 15, 2011. Om Parkash and others. …… Appellants. Versus Kamlesh Kumar and others. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellants : Mr. Virender Singh Rathore, Advocate. For the respondents : Mr. K.D. Sood, Advocate for respondents No.1 and 4 to 6. Names of respondents No.2 & 3 deleted. Surinder Singh, J (oral). The present Regular Second Appeal preferred under Section 100 of the Code of Civil Procedure was admitted for hearing on the following substantial question of law:- “Whether the findings of learned Courts below are vitiated due to misreading and mis-appreciation of evidence on record?” 2. The present appeal is against the concurrent findings of the Courts below. In short, the facts giving rise to the present appeal can be stated thus. Respondents hereinafter to be referred as “the plaintiffs” had filed a suit - 2 - against the appellants hereinafter to be referred as “the defendants” with respect to the suit land seeking possession on the ground that they are owners of the suit land, but it was in the possession of Surat Ram, predecessor-in-interest of the defendants. Said Surat Ram was having the permissive possession thereof. When the defendants after the death of Surat Ram aforesaid were asked to hand over the possession, they refused, hence the present suit. 3. The defendants resisted and contested the suit, on the ground that aforesaid Surat Ram was a non- occupancy tenant and not a licencee as alleged. The entry to this effect was incorporated in the Jamabandi for the year 1959-60 and by virtue of the H.P. Tenancy and Land Reforms Act, 1964, they became its owner. Alternatively the defendants prayed that in case the tenancy is not proved, they asserted their adverse possession since November, 1977. By way of preliminary objections, they also took up the point of limitation, estoppel, jurisdiction and questioned the locus-standi of the plaintiff to file the present suit. 4. On the pleadings of the parties, learned trial Court framed the following issues:- - 3 - “1. Whether the plaintiffs are entitled to the possession of the suit land? …OPP. 2. Whether possession of the defendants qua suit land is permissive as alleged? …OPP. 3. Whether the suit is within time? …OPP. 4. Whether the plaintiffs have no locus-standi to suit? …OPD. 5. Whether the plaintiffs are estopped by their act and conduct? …OPD. 6. Whether the defendants were earlier tenants of the suit land and have become owners thereof by virtue of H.P. Tenancy & Land Reforms Act? …OPD. 7. If issue No.6 is not proved in affirmative, whether the defendants have become owners of the suit land by way of adverse possession? …OPD. 7-A. Whether the Civil Court has no jurisdiction to try the suit? …OPD. 8. Relief. 5. At the end of trial, after appreciating the evidence on record, learned trial Court decided all the issues in favour of the plaintiffs and against the defendants, thus decreed the suit of the plaintiff for possession, which was assailed before the learned District Judge and during the pendency of the appeal, amendment of the written statement was also sought, which was declined and on merits, learned first Appellate - 4 - Court did not find any error in the impugned judgment and decree, as such dismissed the appeal. 6. Shri Virender Singh Rathore, learned counsel for the appellant-defendants vehemently argued that the learned Courts below have ignored the material evidence on record with respect to the tenancy and did not appreciate the point of adverse possession taken by the defendants in the right perspective, therefore, the impugned judgment and decree passed by the Courts below deserves to be set-aside. 7. Contra, Shri K.D. Sood, learned counsel for the contesting respondents-plaintiffs, supported the impugned judgment and decree. 8. The above facts clearly establish that the defendants did not dispute the title of the plaintiffs with respect to the suit land, but they asserted their tenancy on the payment of “Batai” since the year 1959-60. Pertinently, there is no reference in the written statement that as to who had inducted them as tenant and what were the terms and conditions of such a tenancy. It is also worth noticing that when the defendant Mulakh Raj put in appearance as DW-1 to substantiate the aforesaid plea, he took altogether different stand and he even did not - 5 - say to whom he or his predecessor was paying “Batai” of ` 200/- as agreed to be paid as rent. No receipt of “Batai” or rent was ever placed on the record to substantiate the plea. Though it is not required to prove tenancy but it is a necessary incident of tenancy which could have afforded corroboration to his statement. It is a settled law that the pleadings of the parties forms the foundation of their case and it is not open to them to give up the case set-up to make out a different case as in the present case the defendants have tried to set-up a case not pleaded by them. Thus, the learned Courts below also rightly concluded that the tenancy is a bilateral agreement entered between the parties on some terms and conditions vide which the rent was payable unless there has been a contract to the contrary. All these facts are required to be pleaded in the written statement and proved during the trial. The latest Jamabandi with respect to the suit land has shown the defendants in permissive possession only, which is contrary to the only entry made in the Jamabandi for the year 1959-60 and these entries are being repeated in the couple of Jamabandies. - 6 - 9. It is a settled law that when there is conflict between new and latest Jamabandies, the latest shall prevail unless these are fabricated. 10. Insofar as the adverse possession is concerned, there is no whisper in the statements of the defendant or their witnesses to this effect nor it has been suggested to the plaintiff in cross-examination, therefore, it stands not proved. Hence, I do not find any fault in the impugned judgment and decree as canvassed by the learned counsel for the appellants-defendants that there has been misreading or mis-appreciation of the evidence on record. Therefore, no question of law much less the substantial question of law arises in the present appeal. Thus, the appeal merits dismissal, hence dismissed. 12. No other point is urged or pressed. 13. The parties are left to bear their own costs. (Surinder Singh ) Judge September 15, 2011. (Pds)