Whether reporters of the Local Papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. R. S. A. No.503 of 2001. Decided on: October 12, 2011. Gahli Devi. …… Appellant. Versus Roshan Lal and others …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellant : Mr. S.D. Gill, Advocate. For the respondents : Mr. R.K.Sharma, Advocate. Surinder Singh, J (oral). The appellant, hereinafter referred to as ‘the defendant’, has preferred the present Regular Second Appeal against the judgment and decree passed by the learned District Judge in Civil Appeal No.40-J/XIII-99 on 23.2.2001, whereby the decree of the learned trial Court was confirmed. 2. The present Regular Second Appeal was admitted prima-facie on the following substantial questions of law:- (1) Whether the Court below has failed to decide the question of limitation as the suit was time barred as the defendants has acquired proprietory rights by virtue of Section 104 of the H.P. Tenancy& Land Reforms Act? - 2 - (2) Whether the civil suit is in jurisdiction when the proprietory rights are claimed as per Section104 of the H.P. Tenancy & Land Reforms Act? 3. In short, the facts giving rise to the present appeal are that late Smt. Gohri Devi widow of Shri Mehta Ram, predecessor-in-interest of the respondents, hereinafter referred as ‘the plaintiff’ filed a suit against the defendant, seeking possession of the suit land alleging that she is owner in possession of the suit land comprised in Khasra Nos.192 and 196 measuring 0-23-19 hectares. The aforesaid land was in her possession prior to the year 1982-83. The settlement operation started in the area during the said year. It is alleged that during the settlement, the defendant got recorded herself as “Kabiz” in the revenue papers qua the suit land in connivance with the settlement staff. Thereafter, without the consent of the plaintiff, the defendant took its possession illegally and refused to hand over it back to the plaintiff, hence sought the relief of possession. 4. The suit was resisted and contested by the defendant, on the grounds that the suit land was a part and parcel of the adjoining land owned by her and the plaintiff was not owner thereof, therefore, the suit is not maintainable. By way of preliminary objections disputed the cause of action and questioned the locus-standi of the - 3 - plaintiff to file the suit and also raised the plea of estoppel, thus prayed for dismissal of the suit. 5. On the pleadings of the parties, learned trial Court framed the following issues:- 1. Whether the plaintiff is the owner of the suit land, as alleged? …OPP. 2. If issue No.1 is proved in affirmative, whether the defendant in the month of March, 1983 forcibly dispossessed the plaintiff, as alleged? …OPP. 3. Whether the suit of the plaintiff is not maintainable in the present form? …OPD. 4. Whether the plaintiff has no enforceable cause of action, as alleged? …OPD. 5. Whether the plaintiff has no locus standi to file the present suit, as alleged? …OPD 6. Whether the plaintiff is estopped to file the present suit by her own act and conduct, as alleged? …OPD 7. Relief. 6. After the complete trial and on going through the evidence of the parties, learned trial Court decided the above issues against the defendant and in favour of the plaintiff, consequently, the suit was decreed, which was challenged in appeal before the learned District Judge. During the pendency of the appeal, the defendant moved an application under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment in written statement pleading non-occupancy tenancy, which was resisted by the plaintiff and simultaneously, another application under - 4 - Order 41 Rule 27 of the Code of Civil Procedure was moved, for leading additional evidence to place and prove on record rapat-roznamcha wherein there was a reference of delay orders issued by the Supreme Court in SLP. 7. On both the above applications, learned First Appellate Court framed points, whether these application deserve to be allowed. 8. The learned First Appellate Court after discussing the law on the point with respect to the amendment, was of the opinion that the amendment sought cannot be allowed as the application was actuated with malafide and the plea which is now being taken was not even suggested to the plaintiff or her witnesses during the trial and insofar as the application for additional evidence i.e. for tendering the copy of the Rapat Roznamacha dated 9.7.1979 is concerned, there was nothing to suggest that the stay was regarding the suit land or what was the final decision in the case and how this document will substantiate the case of the defendant in any manner, therefore, this application was also dismissed. Further on merits, learned First Appellate Court upheld the judgment and decree passed by the learned trial Court, on the ground that the entry of “Kabiz” was without any status and order of the competent - 5 - authority. Further that the earlier revenue record relied upon by the defendant did not pertain to the suit land, whereas the plaintiff substantiated her case and could not be shattered in the cross-examination. Contra, the defendant’s attorney appeared in the witness box and stated that the suit land was in their possession since her grand-father as tenant which fact is not corroborated by the oral as well as documentary evidence, thus her solitary statement cannot be said to be sufficient to prove her possession over the suit land. Thus, dismissed the appeal. 9. Shri S.D. Gill, learned counsel for the defendant vehemently argued that both the applications aforesaid should have been allowed by the First Appellate Court to meet the ends of justice. Further that the defendant has acquired the proprietory rights by virtue of Section 104 of the H.P. Tenancy and Land Reforms Act and the Civil Court was not competent to decide the case and it was barred by limitation. 10. Contra, Shri R.K. Sharma, learned counsel for the plaintiff supported the impugned judgments passed by the Courts below. - 6 - 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 12. As a matter of fact, the defendant has not set- out the case of tenancy as is sought to be pleaded by seeking amendment before the First Appellate Court after lapse of about seven years, which was declined. There is only a self serving statement of DW1 Smt. Reeta Devi, daughter of the defendant that the land in question is in their possession since her grand-father as a non-occupancy tenant on payment of rent. She admitted that this plea was not included in the written statement initially filed by them without any explanation for not doing so. She also did not know which of the Khasra number was in possession of her grand-father, whereas, the perusal of the Jamabandi Ext.P3 for the year 1978-79 shows that Khasra No.94 min measuring 16 Kanal was recorded in the possession of the co-sharers including the plaintiff. There is no reference of the defendant either in the column of ownership or in possession in any capacity. In the subsequent Jamabandies for the year 1982-83, this Khasra No.94 min was shown to have been allotted Khasra Nos.192 and 196 and for the first time, the entry of the defendant appeared in the Jamabandi against - 7 - the suit land without recording her capacity. Nothing had been brought on record to show under whose order or authority her entry in the column of possession was made, which was definitely contrary to the earlier Jamabandi Ext.P3 for the year 1978-79. Further the Jamabandi for the year 1989-90 (Ext.P1) the defendant has been shown as “Kabiz” without any status and order of competent authority. The case of the plaintiff is that during settlement proceedings, the defendant in connivance with the settlement staff got this entry incorporated in the Jamabandi behind the back and without her consent, pursuant to which she took over the possession of the suit land, which is substantiated by the above proved facts and also in view of the statement of PW1 Ram Singh son of the plaintiff. The Jamabandies Exts.D2 to D4 w.e.f. 1963-64 till 1973-74 do not serve the purpose of the defendant even to remotely show that she was non-occupancy tenant of the suit land. Khasra No.94 min which was 16 Kanal was shown in the exclusive possession of Krishan Dev from whom the land stands purchased by the plaintiff. 13. In view of the above, in my opinion, the plea of tenancy as was sought to be included by way of amendment is not at all bonafide and further the additional - 8 - evidence which is sought to be proved has no link with the case, therefore, aforesaid both the applications were rightly rejected/ dismissed, so the appeal. Since the defendant had illegally encroached upon the land of the plaintiff and the suit was filed within twelve years, therefore, the suit was not barred by limitation nor the defendant is stated to have been acquired the proprietory rights, as alleged, thus no question of law much-less the substantial questions of law arises in this appeal. Therefore, the impugned judgment and decree as passed by the learned District Judge is upheld and the appeal is dismissed with costs throughout. 14. In view of the dismissal of the appeal, the interim order dated 22.2.2002 making absolute vide order dated 5.6.2002 shall stands vacated. October 12, 2011. (Surinder Singh ) (Pds) Judge