IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 486 of 2000 Date of decision: 20.10.2010 Lal Singh and another ... Appellants Versus Ujagar Singh and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Sandeep Chauhan vice Mr. Bimal Gupta Advocate For the respondents: Mr. Y.P.S. Dhaulta, Advocate, for respondents No. 1 to 3. V.K. Ahuja, J. (Oral) : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellants/plaintiffs against the judgment and decree of the Court of learned District Judge, Sirmaur District at Nahan, dated 11.7.2000, vide which he accepted the appeal filed by the respondents/defendants against the judgment and decree passed by the Court of learned Sub Judge, Rajgarh, dated 10.11.1999, decreeing the suit for permanent injunction filed by the appellants/plaintiffs and the said findings were reversed by the learned First Appellate Court. 2. Briefly stated, the facts of the case are that the appellants, hereinafter also referred to as the plaintiffs, filed a suit 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 for permanent injunction as against the respondents, hereinafter also referred to as the defendants. It was alleged by the plaintiffs that the plaintiffs alongwith defendant No. 3 and proforma defendants are absolute owners in possession of Abadi Deh land comprised in Khasra No. 685/240 measuring 3-09 Bighas. It was alleged that defendant No. 3 without the knowledge of the plaintiffs and proforma defendants sold a part of this Khasra No. to defendants No. 1 and 2 through an oral agreement. Defendants No. 1 and 2 were alleged to be strangers to the suit land, started digging the suit land for raising construction over the land, to which they have no right. Hence, the suit for permanent injunction filed by the plaintiffs. 3. Defendant No. 1 contested the suit and took up preliminary objections in regard to maintainability, estoppel etc. On merits, he pleaded that he is also a resident of village Mangan and is entitled for the share in the Abadi Deh of the village. He also pleaded that his son Sukh Dev had purchased old and dilapidated structure and land thereunder for a consideration of Rs.4000/- from defendant No. 3 and had reconstructed a cow-shed thereafter. Thus, it was pleaded that no cause of action had arisen to the plaintiffs and as such, the suit is liable to be dismissed. 4. On the pleadings of the parties, nine issues were framed by the learned trial Court. However, Issues No.1 and 2 are material, which are as under:- 1. Whether the plaintiffs are absolute owners in possession of Abadi land on the basis of family settlement as alleged in para 1 of the amended plaint? ... OPP 3 2. Whether the defendants No. 1 & 2 raised structure over the suit land after filing the suit? … OPP 5. The plaintiffs led their evidence and the learned trial Court vide its judgment decreed the suit of the plaintiffs for permanent prohibitory injunction. 6. On appeal, those findings were reversed by the learned District Judge, who dismissed the suit of the plaintiffs after allowing the appeal filed by the defendants. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel appearing for the appellants were that the land in question had fallen in family settlement to the shares of the plaintiffs who were in possession of the suit land as owners and as such, was rightly held entitled to the relief of injunction by the learned trial Court. It was also submitted that the construction had been raised after purchase by defendant No. 1 and as such, the plaintiffs were entitled to the relief of injunction in their favour. 9. On the other hand, learned counsel for the respondents had supported the impugned judgment passed by the learned District Judge for the reasons recorded therein. 10. On appraisal of the record of the case, it is clear that the appeal filed by the appellants was admitted on substantial question of law since defendant No. 1 did not set up any title of himself regarding the suit land but he set up title in favour of his son Sukh 4 Dev and as such, the plaintiffs were entitled to the relief of prohibitory injunction in their favour. 11. On appraisal of the record of the case, it is clear that there are findings of fact recorded by the learned District Judge as well as by the learned trial Court that the land in question was Abadi Deh and it was recorded as Abadi Deh in the copy of jamabandi for the year 1992-1993 Ext. PW1/A. Thus, there was no possession of any particular proprietor of the village recorded in the revenue record and as such, the land shall be deemed to be owned and possessed by the proprietors of the village. It has been specifically held by the learned District Judge that the defendants have placed on record a copy of proprietors of village Ext.DA, which shows that not only Lal Singh, plaintiff, but defendant No. 1 was also a proprietor in the village. However, no evidence was produced on record by the plaintiffs to show that they were also proprietors in the village. Thus, both the parties were rightly held to be in joint possession of the Abadi Deh in question. 12. The plaintiffs had taken the plea that a private partition was effected in between the parties, which plea was taken in evidence but it was not pleaded in the plaint that the land had fallen to the share of the plaintiffs in the family settlement. No written document was effected in between the parties and particularly the family settlement, if any, was also not alleged or proved from the evidence. Therefore, the learned District Judge had come to a right conclusion that the land in question was in possession of the plaintiffs and defendant No. 3 jointly and defendants No. 1 and 2 admittedly have purchased it from defendant No. 3 and as such, they shall be deemed 5 to be in rightful possession of the suit land. The mere question that the defendants have not been able to prove the sale deed in their favour is not sufficient to hold that the plaintiffs have been able to prove their case that they were in exclusive possession of the suit land as owners. Plaintiff Lal Singh could be held entitled to the relief of permanent injunction. He was liable to prove that he was in exclusive possession of the suit land to the exclusion of others, in which he has failed. Therefore, the findings recorded by the learned District Judge are based upon correct appreciation of evidence and law and these do not call for an interference by this Court. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants and the same is accordingly dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), October 20, 2010 Judge (BSS)