IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.288 of 1997 Judgment reserved on : 5.4.2010 Date of decision : 3.5.2010 ____________________________________________________ Pritam Chand …Appellant. Versus Rajinder and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the appellant : Mr. Romesh Verma, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate for respondents No.1(a) to 1(c) and 2. Kuldip Singh, J The common judgment, decree dated 21.6.1997 passed by learned District Judge, Solan Camp at Nalagarh in Civil Appeal No.60-NL/13 of 1995 and Civil Appeal No.61-NL/13 of 1995, arising out of judgment, decree dated 25.9.1995 passed by learned Sub Judge Ist Class, Nalagarh in Civil No.165/1 of 1990 has been assailed in the second appeal. The learned Sub Judge has decreed the suit, both the defendants had filed separate appeals which were dismissed by learned District Judge on 21.6.1997 2. The facts in brief are that Devi Lal predecessor of _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 respondents No.1(a) to 1(c) and respondent No.2 had filed a suit for possession against appellant and proforma respondent No.3 regarding land comprised in khewat/khatauni No.10 min/17 min, khasra Nos.1234/138 measuring 3 biswas and khasra No.188 measuring 8 biswas, kitas 2, total measuring 11 biswas situated at village Mallpur, Hadbast No.189, pargana Dharampur, Tehsil Nalagarh, District Solan. A prayer for mesne profits at the rate of Rs.200/- per crop for illegal occupation of the suit land was also claimed. It is the case of the respondents No.1(a) to 1(c) and respondent No.2 that they are owners of the suit land. The appellant and proforma respondent No.3 have no right over the suit land. They dispossessed predecessor of respondents No.1(a) to 1(c) and respondent No.2 on 10.4.1989. They were requested to restore the possession and when they did not pay any heed to the request of predecessor of respondents No.1(a) to 1(c) and respondent No.2 then the suit was filed. 3. The suit was contested by appellant and proforma respondent No.3 by filing separate written statements. The defence of appellant is that earlier Rala Ram, predecessor-in-interest of appellant was owner in possession of land measuring 8 biswas. After the death of Rala Ram on 3.7.1976, the appellant is continuing in adverse possession of the suit land. In the partition proceedings predecessor of respondents No.1(a) to 1(c) and respondent No.2 have admitted the appellant owner of land measuring 8 biswas. It was agreed that appellant will be allotted land out of the joint khewat apart from land measuring 8 biswas. The predecessor of respondents No.1(a) to 1(c) and respondent No.2 have manipulated wrong partition by not 3 excluding 8 biswas as agreed. In the family settlement dated 15.5.1975 the appellant was admitted to be exclusive owner in possession of the suit land. The appellant claimed owner by way of adverse possession of land measuring 8 biswas. 4. The proforma respondent No.3 has claimed the ownership on khasra No.1234/138, measuring 3 biswas. It was alleged that this land was earlier owned and possessed by Harbhajan Singh and after his death about 70 years ago Maghu father of proforma respondent No.3 came into possession. The proforma respondent No.3 is in possession of khasra No.1234/138 to the knowledge of all concerned after the death of Maghu father of proforma respondent No.3. In replication the predecessor-in-interest of respondents No.1(a) to 1(c) and respondent No.2 denied the claim of appellant and proforma respondent No.3. 5. On the pleadings of the parties the following issues were framed:- 1. Whether the plaintiffs are entitled for the relief of possession of the suit land as alleged? …OPP 2. If issue No.1 is proved in affirmative whether the plaintiffs are entitled for mesne profits to the tune of Rs.200/- per crop as alleged? …OPP 3. Whether the defendant No.1 has become owner by way of adverse possession of 8 biswas out of the suit land as alleged? ….OPD-1 4. Whether the defendant No.2 has become owner by adverse possession of the land measuring 0-3 biswas of the suit land as alleged ? ..OPD-2 5. Whether the suit is not maintainable as alleged? ….OPD 4 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? ..OPD-2 7. Whether the plaintiffs have no cause of action as alleged? ..OPD-2 8. Whether the plaintiffs are estopped to file the instant suit by act and conduct as alleged? ..OPD-2 9. Whether the defendant No.1 is entitled for special costs as alleged? ..OPD-1 10 Relief. The issue No.1 was answered in affirmative and issues No. 2 to 9 were in negatives. The learned Sub Judge decreed the suit on 25.9.1995. The appellant had filed a Civil Appeal No.60-NL/13 of 1995 against judgment, decree dated 25.9.1995 in the lower Appellate Court. The proforma respondent No.3 had filed Civil Appeal No.61- NL/13 of 1995 in the lower Appellate Court, both the appeals were decided by common judgment, decree dated 21.6.1997 by learned District Judge. Only appellant has assailed judgment, decree dated 21.6.1997 passed by learned District Judge in Civil Appeal No.60- NL/13 of 1995 which has been admitted on following substantial questions of law:- 1. Whether for want of execution of instrument of partition, by the respondent within statutory period of 3 years, they are de-barred from claiming possession? 2. Whether in the absence of execution of instrument of partition prepared by Revenue Court, suit for possession can be maintained within 3 years? 5 3. Whether joint suit with respect of different plots against different defendants cannot be entertained and the courts below had jurisdiction? 6. I have heard Mr. Romesh Verma, learned counsel for the appellant and Mr. Ramakant Sharma, learned counsel for the respondents No.1(a) to 1(c) and respondent No.2 and have also gone through the record. It has been submitted on behalf of the appellant that on the basis of instrument of partition possession was not given of the suit land within three years, therefore, now the respondents No.1(a) to 1(c) and respondent No.2 are debarred from claiming possession of the suit land. It has been submitted that for the same reason the suit is not maintainable. The joint suit for two sets of properties is not maintainable. The learned counsel for the respondents No.1(a) to 1(c) and respondent No.2 has supported the impugned, judgment, decree. Substantial questions of law No.1 and 2 7. The substantial questions of law No.1 and 2 are interconnected; therefore, both of them are being taken up together for disposal. There is no dispute that khasra No.188 measuring 8 biswas was part of partition proceedings among the co-owners in the year 1981. The predecessor-in-interest of respondents No.1(a) to 1(c) and respondent No.2 as well as appellant and proforma respondent No.3 were also the co-owners. The instrument of partition Ex.PA was prepared and it came into operation from Rabi 1981. The khasra No.188 was allotted to predecessor-in-interest of respondents No.1(a) to 1(c) and respondent No.2. 6 8. The learned counsel for the appellant has submitted that as per Section 134 of the Himachal Pradesh Land Revenue Act, 1954 (for short Act) the allottee of the land in partition is entitled to possession within three years from the date recorded in the instrument of partition. He has submitted that there is nothing on record to show that when the possession of the suit land was delivered to predecessor of respondents No.1(a) to 1(c) and respondent No.2 on the basis of instrument of partition. The predecessor of respondents No.1(a) to 1(c) and respondent No.2 were not given possession of the suit land within three years from the date mentioned in the instrument of partition. They concocted a story that they were given the possession pursuant to the partition and thereafter they were dispossessed by the appellant and proforma respondent No.3. The learned counsel for the appellant has relied on Gopi Chand and another vs. Sonam Dass and others 1998(1) SLC 488 and has submitted that the suit of the nature filed by predecessor of respondents No.1(a) to 1(c) and respondent No.2 is barred from the purview of the Civil Court in view of Clause (xvii) of sub-section (2) of Section 171 of the Act. The learned counsel for the appellant for the same proposition has relied Durga Singh and another vs. Nand Lal and another 2002 (1) SLC 228. 9. The question of bar under Section 134 of the Act will arise only if the possession was not delivered to predecessor of respondents No.1(a) to 1(c) and respondent No.2 within three years of the date mentioned in the instrument of partition and if thereafter the claim is made by way of civil suit for possession of land of which possession 7 was not obtained in the partition proceedings. The proforma respondent No.3 has not filed any appeal against common judgment, decree dated 21.6.1997, therefore, judgment, decree dated 21.6.1997 passed in Civil Appeal No.61-NL/13 of 1995 has become final against proforma respondent No.3. The appellant in the written statement has not taken specific plea that in pursuance of instrument of partition the possession of suit land was not delivered to predecessor of respondents No.1(a) to 1(c) and respondent No.2 . The appellant, however asserted his possession as owner on land measuring 8 biswas. 10. PW-1 Bhajna Ram is the Power of Attorney Holder of respondent No.2 and has stated that the suit land was earlier joint which was partitioned in the year 1981 and thereafter predecessor of respondents No.1(a) to 1(c) and respondent No.2 had become owner in possession. Thereafter the appellant and proforma respondent No.3 had dispossessed them forcibly. DW-1 Pritam Chand has stated that out of the suit land he is in possession of land measuring 8 biswas. He has stated that in partition also this land was given to him in addition to his share. In cross-examination he has admitted that the partition case was started in the year 1981 by Pyare Lal. The suit land was included in that case. After partition mutation was attested and parties were put in separate possession. In other words, the appellant has admitted that after partition possession was delivered on the spot to the parties. He has admitted that suit land was included in partition. Thus, it is clear that possession of the suit land which was included in the partition was also delivered as per partition. Once the possession 8 was delivered in the partition then question of bar of taking into possession under Section 134 of the Act of the suit land does not arise. Therefore, Gopi Chand as well as Durga Singh (supra) are not applicable in the facts and circumstances of the case. 11. The copy of Missal Haquiat for the year 1987-88 Ex.P-2 indicates that khasra No.1234/138 measuring 3 biswas is owned by Devi Lal and Gokal. Similarly, Missal Haquiat for the year 1987-88 Ex.P-3 establishes the ownership of Devi Lal and Gokal on khasra No.188, measuring 8 biswas. The case of the predecessor of respondents No.1(a) to 1(c) and respondent No.2. is that they were put in possession in the partition case. Ex.P-2 and Ex.P-3 corroborate the case of the predecessor of respondents No.1 (a) to 1(c) and respondent No.2. Pritam Chand appellant himself has admitted in his statement that possession was delivered to the parties after the partition. The predecessor of respondents No.1 (a) to 1(c) and respondent No.2 have proved their title on the suit land. On the contrary adverse possession has not been proved by the appellant on the suit land. The suit is maintainable. The substantial questions of law No.1 and 2 are decided against the appellant and in favour of predecessor of respondents No.1(a) to 1(c) and respondent No.2. Substantial question of law No.3 12. The appellant has not taken the specific plea in the written statement that the suit is not maintainable for clubbing two causes of action in one suit. No specific issue was framed to this effect. In State Bank of Patiala v. Hypine Carbons Ltd. 1989 (1) SLC 278, it has been held that basic principles which emerge from the discussion 9 made in the decisions noticed in the judgment are that- “the plaintiff may join, in the same suit, several defendants and causes of action where there is community of interest between the defendants or if the evidence, which was sufficient to enable the plaintiff to get a decree against all the defendants, is the same. There should be some nexus which should enable the plaintiff to join various defendants in one suit. The nexus may take the form of the right to relief which the plaintiff is claiming as flowing from the same transaction or series of transactions involving the various defendants. I may also take the form of the same question of law being involved for decision in the suit upon which may depend the right of the plaintiff to seek relief against all the defendants. The nexus may also be that on a common set of facts the plaintiff may claim relief against the defendants. It is not necessary that all the questions of fact arising in the suit are common to each and every defendant. It would be sufficient if one common question of fact arose. Merely because some additional fact was required to be established in regard to some defendant or the other, which was not common to all of them, it would not mean that the causes of action against the defendants cannot be combined in one suit.” 13. In State Bank of Patiala supra it has been further held that basic object in permitting joinder of defendants or causes of action being to avoid multiplicity of proceedings, the provisions contained in Order 1 Rule 3 CPC and Order II Rule 3 CPC should receive a liberal interpretation. In the present case two defendants were joined. One defendant namely proforma respondent No.3 has accepted the judgment, decree passed by learned District Judge. He has not come in second appeal, only one defendant namely appellant remained there. Therefore, it cannot be said now the suit against appellant is bad as joint suit was filed against him and proforma respondent No.3. The appellant has not shown any prejudice for impleading him alongwith proforma respondent No.3. Hence, substantial question of law No.3 is decided against the appellant and in favour of the respondents No.1(a) to 1(c) and respondent No.2 . 10 14. No other point was urged. 15. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. May 3, 2010 (Kuldip Singh), (sks) Judge.