1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 377 of 2001. Judgment reserved on 23.8.2011. Date of decision: 26.09.2011. Surat Ram. …Appellant. Versus Mohan Lal & Anr. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. For the Respondents : None . Kuldip Singh , Judge . The appellant having lost in both the Courts below has filed the second appeal assailing judgment, decree dated 04.06.2001 passed by learned Additional District Judge, Shimla, in Civil Appeal No. 102-S/13 of 1999 affirming judgment, decree dated 10.11.1999 passed by learned Sub Judge, Theog, in case No. 144-1 of 1997. 2. The facts, in brief, are that appellant had filed a suit for declaration that he has become owner of the land denoted by Khasra No.216, measuring 0-19-17 hectares, Chak Chounri, the contrary revenue entries are wrong and illegal. The consequential relief of permanent prohibitory injunction was also prayed restraining the respondents from interfering over the suit land. The appellant pleaded 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 that his father purchased land comprised in Khasra Nos. 211, 214, 215, 219, 221 etc. from one Smt. Belkoo in the year 1957, who delivered the possession of the land which was in her possession at the time of sale. Smt. Belkoo was also in possession of part of old Khasra No. 394 which has been given Khasra No. 216 in the settlement. Smt. Belkoo also handed over possession of part of Khasra No. 394 to the father of appellant along with land which was actually sold by her. The land after purchase was developed by father of the appellant. It transpires during settlement that part of Khasra No. 394 is in possession of appellant and remaining part of Khasra No. 394 denoted by Khasra No. 574 is in possession of respondents. The appellant has pleaded that he has become owner of the suit land by way of adverse possession. 3. The suit was contested by respondents by filing separate written statement. They denied that Smt. Belkoo was in possession of the suit land and she delivered possession of the suit land to the father of the appellant when he purchased some land from her. They denied that plaintiff has raised orchard over the suit land. It has been stated that Khasra No. 394 was purchased by the father of the respondents along with other land over which the father of the respondents had raised orchard. The Khasra No. 394 was gifted to respondents and mutation dated 09.06.1970 was attested to this effect. It has been denied that a part of Khasra No. 394 during settlement was found in possession of appellant. The adverse possession of appellant has been denied by taking the plea that question of adverse possession does not arise as the appellant is not in possession of the suit land. The objections of cause of 3 action, limitation and jurisdiction were also taken. 4. The respondents filed counter-claim and alleged that appellant is interfering in their possession on the suit land. In the replication and written statement to the counter-claim, the appellant reiterated his case projected in the plaint. He denied that respondents are in possession of the suit land. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has become the owner of the suit land by way of adverse possession? OPP. 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction? OPP. 3. Whether this court has pecuniary jurisdiction? OPP. 4. Whether in the counter claim the defendants are entitled for the relief of permanent prohibitory injunction? OPD. 5. Whether the suit is not within limitation?OPD. 6. Relief. The issues 1 ,2 and 5 were answered in negative and issues No. 3 and 4 in affirmative. The learned Sub Judge on 10.11.1999 dismissed the suit and decreed the counter-claim. In appeal, the learned Additional District Judge on 04.06.2001 affirmed the judgment, decree dated 10.11.1999 of trial Court and dismissed the appeal, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the Courts below have mis-read and mis- appreciated the evidence on record, more specifically revenue record and the statement of the Kanungo PW-5 to come to the conclusion that the appellant-plaintiff is not in adverse possession of the land in dispute? 4 2. Whether a grave prejudice has been caused to the appellant by dismissal of his suit(sic application) under Order 41 Rule 27 C.P.C. by first appellant Court? 6. I have heard Mr. G.D.Verma, Senior Advocate, learned counsel for the appellant and none appeared on behalf of the respondents. It has been submitted by Mr. Verma that Courts below have mis-read and mis-interpreted the record, statement of PW-5 in returning the finding that the appellant is not in possession of the suit land. The dismissal of application under Order 41 Rule 27 CPC by the first Appellate Court has caused serious prejudice to the appellant. He has prayed for acceptance of the appeal. 7. The substantial question of law No. 2 is taken up first for determination. The appellant had filed an application under Order 41 Rule 27 read with Section 151 CPC for leading additional evidence. It has been stated in the application that Khasra No. 394 old was bifurcated into Khasra Nos. 216 and 574. The reason for bifurcation of Khasra No. 394 was that appellant was found in possession of land bearing Khasra No. 216. The necessary entries in the field book were also made and the misal-haqiyat was prepared. The prayer has been made for examining the Patwari halqua Chak Kyari-Chounri along with record of original field book, khata-khatauni, jamabandi and 'latha' pertaining to old Khasra No. 394 and new Khasra Nos. 216 and 574. It has been alleged that despite due diligence the appellant could not produce record before the trial Court. The additional evidence is necessary in order to adjudicate the real controversy. The application 5 was opposed. In the reply, it has been stated that witness sought to be examined by way of additional evidence has already been examined on 25.07.1998. PW-5 has already admitted that possession of the appellant was not recorded. The respondents were not on the spot when the witness visited the spot. The possession was not enquired into by revenue Officer. 8. It has been submitted by the learned counsel for the appellant that application under Order 41 Rule 27 CPC was not decided along with appeal. The lower Appellate Court has erred in dismissing the application for additional evidence. The learned counsel for the appellant has relied State of Rajasthan Versus T.N.Sahani and Others (2001) 10 SCC 619 and Eastern Equipment & Sales Limited Versus Ing. Yash Kumar Khanna (2008) 12 SCC 739. In State of Rajasthan Versus T.N. Sahani (supra), the Supreme Court has held that it is always open to the Court to look into the documents and for that purpose amended provision of Order 41 Rule 27 (b) CPC can be invoked. So, the application under Order 41 Rule 27 CPC should have been decided along with the appeal. 9. In Eastern Equipment & Sales Limited Versus Ing. Yash Kumar Khanna (supra), the Supreme Court has held that in order to decide the pending appeal in which application under Order 41 Rule 27 of the Code of Civil Procedure was filed ought to have been taken by the appellate Court along with the application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. The Supreme Court directed that the appellate Court shall 6 decide pending appeal along with application under Order 41 Rule 27 of the Code of Civil Procedure on merits. 10. The appeal and the application under Order 41 Rule 27CPC were heard by the lower appellate Court on 10.05.2001. The application was dismissed on 04.06.2001, so also the appeal on the same date. In these circumstances, it cannot be said that the lower Appellate Court has not heard and considered the application under Order 41 Rule 27 CPC along with the appeal. The record reveals that application for additional evidence and the main appeal were heard and decided on the same day. 11. The learned counsel for the appellant has submitted that record sought to be produced by the appellant is public record. He has relied Shyam Gopal Bindal and Others Versus Land Acquisition Officer and Another (2010) 2 SCC 316. In that case, the documents sought to be produced were judicial orders declaring ownership rights of appellants which were having a crucial bearing on the merits of the claim put forward by the appellants. The original plaintiff had died during the pendency of the civil suit. The documents could not be brought on record as the appellants were not aware of the orders. In the present case, the judicial orders are not sought to be produced by way of additional evidence. 12. The learned counsel for the appellant has relied Jaya Ramdass & Sons Versus Mirza Rafatullah Baig and Others (2004) 10 SCC 507. In that case, the Supreme Court has held that documents which were brought to the notice of the Court by the appellants and the documents which were already available on record were at variance, the 7 effect of such variance would have a material bearing on the crucial issue arising for decision between the parties. 13. In the present case, no copies of field book, khata-khatauni, jamabandi and 'latha' sought to be produced by way of additional evidence have been placed on record. The lower Appellate Court has held that after settlement operation, jamabandi and other records were prepared. The jamabandi prepared after settlement is already on file showing possession of the respondents over the suit land. The jamabandi carries presumption of truth. The lower Appellate Court, in these circumstances, declined to permit the appellant to adduce additional evidence. In the second appeal also, the appellant has not placed on record copies of the documents which are sought to be brought on record by way of additional evidence. It is not the case of the appellant that such documents despite his best efforts could not be made available to him. In absence of copies of documents sought to be brought on record by way of additional evidence and the fact that the jamabandi prepared after the settlement is on record, no fault can be found with the order of the learned Additional District Judge rejecting the plea of the appellant to adduce additional evidence. The appellant has failed to make out a case for leading additional evidence. The substantial question of law No. 2 is decided against the appellant. 14. The learned counsel for the appellant under substantial question of law No.1 has submitted that Courts below have mis-read and mis-appreciated the evidence on record, more particularly, the revenue record and statement of PW-5 Hukam Chand, Kanungo. The 8 appellant had filed the suit for declaration that he is owner of the suit land, the contrary revenue entries are wrong and illegal. He has prayed permanent prohibitory injunction. He has pleaded adverse possession on the suit land. The specific case of the appellant is that his father had purchased land comprised in Khasra Nos. 211, 214, 215, 219, 221 etc. from one Smt. Belkoo in the year 1957, who delivered the possession of the land at the time of sale. The appellant as PW-1 has stated that land purchased by his father was measuring 44 bighas, his father lived upto the year 1975. He has admitted that land comprised in Khasra No. 394 was purchased by the father of the respondents. Shyama Nand is the father of the respondents. He has admitted that Shyama Nand had raised an orchard over Khasra No. 394. He has stated that Khasra No. 216 is measuring 2 bighas 11 biswas. He has stated that he is in possession of Khasra No. 216 since 1957 and he has raised orchard on Khasra No. 216. 15. The appellant in his statement has not stated that his possession on Khasra No. 216 is open, hostile and to the knowledge of respondents and he has become owner of Khasra No. 216 on the basis of the adverse possession. On the contrary, the appellant contradicted himself when he has stated that father of respondents purchased Khasra No. 394 and raised orchard on Khasra No. 394. It is not the case of the appellant that he dispossessed Shyama Nand, father of the respondents and took possession of any part of Khasra No. 394 which later on became Khasra No. 216 in settlement. 16. PW-5 in his examination-in-chief has stated that he found 9 possession of appellant on Khasra No. 216. He has stated that he inspected the spot in the year 1996. He has stated that he cannot say when Patwari demarcated the land and whether the Patwari informed the parties. The verification was done on 14.06.1996. He verified the position of Khasra No. 89 on 14.06.1996. He has stated that 'parcha- jamindari' Ex. D-1 was issued by him as per spot. He has stated that if on spot somebody-else is found in possession, then file to this effect is prepared by Patwari and Kanungo which is sent to the Assistant Collector 2nd Grade. The file of old Khasra No. 394 corresponding to new Khasra Nos. 216 and 574 was not prepared. He has stated possession of appellant on the basis of the field book which he has not brought in the Court. 17. PW-5 has not stated that on 14.06.1996 when he verified the position on the spot, the fields were demarcated and the possession was identified. He has not stated on what basis he came to the conclusion that Khasra No. 216 was found in possession of the appellant at the time of spot verification. He has admitted that file is prepared when somebody-else is found in possession on the spot of land owned by other person, but no such file was prepared in the present case. How entry in the field book, if any, was made, that he has not explained. 18. Ex. P-1/D-1 are the copies of Khatauni showing respondents in possession of Khasra Nos. 216, 574. Ex.D-2 is the copy of khasra girdwari from 08.08.1990 to August, 1995 showing respondents in possession of Khasra No. 394. Ex. D-3 is the copy of misal-haqiyat showing the respondents owners in possession of Khasra 10 No. 394. Ex. D-4 is the copy of jamabandi 1984-85, Ex. D-5 is the copy of jamabandi 1979-80, Ex. D-6 is the copy of jamabandi 1975-76, Ex. D-7 is the copy of jamabandi 1969-70 showing the same position as in Ex. D-3. Ex. D-9 is the copy of jamabandi 1964-65. Shyama Nand has been shown in possession of Khasra No. 394. Thus, there is overwhelming evidence on record to show that respondents are in possession of the suit land and appellant has failed to prove his possession on the suit land. 19. The learned counsel for the appellant has also submitted that the lower Appellate Court has not considered the entire case of the parties. The first Appellate Court being the last Court on facts is required to consider the entire case. I have gone through the impugned judgment. The lower Appellate Court has concurred with the findings recorded by the trial Court. The perusal of the judgment shows that the case of both parties was considered by the lower Appellate Court. In a judgment of affirmation, it is not necessary for the Appellate Court to write judgment like trial Court. Thus seen from any angle, there is no merit in the appeal. The substantial question of law No.1 is decided against the appellant. 20. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), September 26, 2011. Judge. (krt)