IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.164 of 1996. Judgment Reserved on: 01.10.2008. Date of decision: 22.10.2008. Devi Dyal …Appellant Versus Radha Ram & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For Respondents: Mr.G.D. Verma, Senior Advocate 1 to 3, 5 and 6 with Mr.Romesh Verma, Advocate. Dev Darshan Sud,J. This is the plaintiff’s appeal against the judgment and decree of the learned District Judge reversing the decree passed in favour of the plaintiff-appellant by learned trial Court. The suit of the plaintiff-appellant for perpetual injunction restraining the defendants from interfering in the possession of the plaintiff over the land comprised in Khasra No.1128/1, 1128/2, 1128/3 and 1128/5, measuring 1 biswa, 4 biswa, 11 biswas and 11 biswas, respectively, as shown in Tatima Ex.PW-3/A, situated 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 at Mauja Garkhal, Tehsil Kasauli, District Solan, was decreed. In appeal, the learned District Judge has reversed the judgment and decree of the learned trial Court. This appeal was admitted on 6.6.1996 on two substantial questions of law, namely:- “1. Whether by non-considering the admissions made by the respondents in the written statement, the learned District Judge has erred in reversing the judgment of the trial Court? 2. Whether learned District Judge is right in returning the finding that suit is bad for want of State of HP even though relief has not been asked against the State of HP nor relief has been granted by the learned trial Court against State of HP or any other person who Is not a party to the suit?” Question No.1: Adverting to the first question, the learned trial Court has noticed as a fact that in paragraph-4 of the written statement that the predecessor-in- interest of the plaintiff was non-occupancy tenant over the suit land and that the plaintiff is in possession of this land over which the defendants are now interfering. A further plea is taken that the very land comprising in Khasra No.1125 min is not adjacent to the suit land in possession of the plaintiff. The learned trial Court holds that this admission coupled with the evidence of PW-3 Nabhi Ram Patwari who has proved a copy of the Aksh Musabi Shajra Ex.PW-3/A and Jamabandi Ex.P-1 for the year 1988-89 the plaintiff has 3 been recorded in possession of Khasra No.1128 min, measuring 1 bigha 7 biswas as Gair Mouroosi (non- occupancy tenant). The learned Court holds on the pleadings and the evidence on record that the defendants claim no right, title or interest to this land and in these circumstances the suit was decreed. In the appeal filed, the learned District Judge reproduces the claim of the plaintiff as pleaded in the plaint and then holds that the State was a necessary party and therefore, proceeded to dismiss the suit. This appeal was admitted on two questions of law, namely, Question No.1 and 2. To say the least, the judgment of the learned District Judge is perverse. It was not sufficient to have merely reproduced one portion of the pleadings i.e. the plaint and to have ignored the pleadings in the written statement. The consistent stand in paragraph-4 of the written statement is that, “In this land, the plaintiff’s predecessor-in-interest was a non-occupancy tenant having been so settled in the land according to the respective shares of the villagers in the land”. It is also pleaded, “the land which is in possession of the plaintiff is evidently a cultivated land in which the replying defendants are not interfering at all”. This was the stand in the preliminary objections. On merits, the stand of the plaintiff is that the defendants are not interfering in the 4 possession of the plaintiff and that the defendants are in possession of the land measuring 2 bighas and 2 biswas. It is by now well established that admission is the best form of evidence unless it is explained away. There is no explanation on the record that the admission is either wrong or has been made in the circumstances which would not be binding on the defendants. The evidence on the record irrespective of the admission establishes the possession of the plaintiff and does not establish any right of the defendants. It is the case of both the parties that they are in possession of their respective portion of the land. The only dispute being regarding the identification of that land. That has also been clarified by PW-3 Nabhi Ram who has prepared the Tatima Aksh Musabi Shajra, Ex.PW-3/A. In the circumstances, the learned District Judge was clearly wrong in ignoring the admission, which was otherwise corroborated by the evidence of PW-3 showing the exclusive possession of the plaintiff, appellant herein. This question is, therefore, decided in favour of the appellant and against the respondent. Question No.2: This question can be disposed of by holding that in case right to ownership is claimed, then in that event, the State of-course would be necessary party as it is the State alone which would be competent 5 to confer proprietary rights. However, in the absence of the State, it cannot be said that the possession of the plaintiff cannot be protected against the defendant who is trying to interfere in the possession of the suit land. In view of the facts and circumstances of the case, I hold that the State was not necessary for the purposes of grant of the relief of injunction. Both the questions having been decided in favour of the appellant, I hold that the plaintiff is entitled for injunction as granted by the learned trial Court of the suit land comprised in Khasra No.1128/1, 1128/2, 1128/3 and 1128/5, measuring 1 biswa, 4 biswa, 11 biswas and 11 biswas, respectively, as shown in Tatima Ex.PW-3/A, situated at Mauja Garkhal, Tehsil Kasauli, District Solan. The judgment and decree of the appellate Court is set aside and that of the trial Court is upheld. October 22, 2008. (Dev Darshan Sud) (aks) Judge.