IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 408/2005 Reserved on: 5.12.2008 Decided on:17.12.2008 Mangat Ram and another. …Appellants. Versus Nag. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no For the Appellants : Mr.Dushyant Dadwal, Advocate. For the Respondent. : In person. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 7.5.2005 passed by the learned Presiding Officer, Fast Track Court, Mandi in Civil Appeal No. 28/2002 (182/2004). Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit in the court of learned Senior Sub Judge, Mandi for permanent prohibitory and mandatory injunction under sections 34 to 38 of the Specific Relief Act stating therein that the 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 land comprised under Khata Khatauni No. 80/117 measuring 4-6-9 bighas and land comprised under Khata Khatauni No. 81/118 measuring 2-7-10 bighas situated at village Nagchala, Tehsil Sadar Mandi was shown in the joint ownership and possession of the parties and other co-sharers and the land comprised under Khata No. 82, Khatauni No. 121, Khasra No. 1473/21, 1475/21 and 1469/29 measuring 0-15-17 bighas situated at village Nagchala, Tehsil Sadar, District Mandi, Himachal Pradesh (hereinafter referred to as ‘the suit land’ for convenience sake) was in the exclusive possession of the plaintiffs. The respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) during the consolidation operations conniving with the lower revenue staff incorporated his name in the ownership and possession behind the back of the plaintiffs. The plaintiffs had filed application before the consolidation authority for delivery of possession. The defendant started interfering in the peaceful possession of the plaintiffs. The suit was contested by the defendant. The trial court dismissed the suit on 27.11.2001. The plaintiffs feeling aggrieved with the judgment and decree dated 27.11.2001, preferred an appeal before the learned first appellate court. The Fast Tract Court Mandi, District Mandi dismissed the appeal on 7.5.2005. This Regular Second Appeal was admitted on the following substantial question of law: 1. Whether the relief of mandatory injunction was wrongly denied to the plaintiff who had proved his possession? Mr. Dushyant Dadwal, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. He has also contended that both the courts below have misread the ocular as well as documentary evidence. He has placed strong reliance upon Khatauni Istemal Ex.PW-1 and statement of PW-1. 3 The defendant has appeared in person. He has supported the judgments and decrees rendered by both the courts below. He has placed strong reliance on Ex.DA jamabandi for the year 1989-90 as well as mark –DX, copy of report dated 1.12.2000. I have heard the learned counsel for the plaintiffs and defendant in person and have perused the record carefully. The plaintiff Mangat Ram has appeared as PW-1. He has deposed that the partition between the parties had taken place 15 years back through the revenue agency. According to him in that partition, their Khatas were separated and they remained in separate possession of the land allotted to them thereafter. He has specifically deposed that the suit land was allotted to the plaintiffs in that partition. The plaintiffs had not examined any other witness to corroborate the statement of PW-1 that the suit land was previously in possession of the plaintiffs and the defendant had taken possession of the suit land during the consolidation operations with the assistance of revenue staff. The bare perusal of Ex.PW-1/A establishes that the suit land was in possession of the plaintiffs as owner as a result of the partition effected between the parties. The suit land comprising Khasra No.1473/21, 1475/21 and 1469/29 measuring 0-15-17 bighas is reflected to be exclusively owned and possessed by the defendant and there is no contrary entry in this document regarding ownership and possession of the plaintiffs over the suit land. The defendant has strongly relied upon Ex.DA i.e. copy of jamabandi for the year 1989-90. As per the contents of jamabandi for the year 1989-90, the suit land has been exclusively shown to be owned and possessed by the defendant whereas the land detailed in para 1 (b) of the plaint was recorded to be owned and possessed by the plaintiffs alongwith other co-sharers. The entries mentioned in the copy of 4 Khatauni Istemal and jamabandi Ex.DA i.e. copy of jamabandi for the year 1989-90 stand fully corroborated by the statement of the defendant. He has deposed that the land detailed in para 1 (c) of the plaint had fallen in his share in the partition which took place between the parties in the year 1984 and the land as detailed in para 1 (b) of the plaint had fallen in the share of the plaintiffs. The fact that partition had taken place has not been disputed by the parties. The land measuring 0-3-15 bighas comprised in Khasra No. 1474/21 min had been allotted to the defendant during the consolidation proceedings. The defendant had put strong reliance on the copy of report dated 1.12.2000 mark-DX vide which the possession of the land comprising khasra No. 1474/21/1 had been delivered to the defendant during the consolidation operations by the consolidation authorities. It is also clear from the copy of Missal Haquiat Istemal for the year 1997-98 Ex.DB that the defendant is owner in possession of the land comprised in Khasra No. 1473/21 (old) new khasra No. 22 and the land comprised in Khasra No. 1474/21 min new khasra No.23. The judgment Bhup Singh and others versus Tulsi Ram and others, 1991 (2) SLJ 785 relied by Mr. Dushyant Dadwal is not applicable in the present facts and circumstances of the case. It has come in the statement of defendant that the consolidation proceedings were not over in the Muhal and the consolidation authorities were still delivering the possession of the land to the persons in the locality. The plaintiffs have not examined any revenue official to prove that the consolidation operations in the Muhal had been completed before the delivery of the possession of the land comprised in Khasra No. 1474/21 min to the defendant by the consolidation authorities. They have also not placed on record copy of notification showing de- notification of the consolidation operations. There is no question of law 5 much less any substantial question of law involved in this Regular Second Appeal. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There shall be no order as to costs. 17.12. 2008 (Rajiv Sharma ), J. *awasthi*