IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 96 of 1997 Date of decision: 16.05.2008 Rajinder Kumar ... Appellant Versus Smt. Satya Devi & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajnish K. Lal vice Mr. K.D. Sood, Advocate. For the respondents: Mr. Dushyant Dadwal, Advocate. V.K. Ahuja, J.(Oral): This is a Regular Second Appeal filed by the appellant against the judgment and decree of the Court of learned District Judge, Kangra, dated 3.12.1996, vide which he affirmed the judgment and decree of the Court of learned Sub Judge Ist Class(1), Dharamshala dated 30.8.1994, dismissing the suit of the appellant for declaration and permanent injunction. Briefly stated the facts of the case are that the appellant as plaintiff filed a suit for declaration with consequential relief of permanent injunction as against the defendant alleging that he was owner in possession of the land and verandah, shop and residential house situated over Khasra Nos. 993 and 994. He further sought declaration that his 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 courtyard (Sehan) of the residential house situated in Khasra No. 995 and the defendant has no concern with the ‘Sehan’ and as such, he also prayed for issuance of mandatory injunction directing the defendant to close the door and window in the wall of his building recently constructed in Khasra No.990 towards Khasra No. 995. Defendant pleaded that the plaintiff is recorded in illegal possession over Khasra Nos. 993 and 994 but he is not recorded in possession of Khasra No. 995. It was denied that Khasra No. 995 was being used as courtyard by the plaintiff. Defendant pleaded that the plaintiff demolished his shop standing over the Khasra Nos. 993 and 994 in his possession and kept a door of his house towards Khasra No.995 for passage to his house. It was also denied that these Khasra Nos. 993, 994 and 995 which are the part of old Khasra No. 84 were allotted to the plaintiff by the Gram Panchayat as it could not be allotted to him since he was minor in 1959 and was not eligible for allotment. It was pleaded that Khasra No. 995 is used as passage and is source of air and light to the house of the defendant and, therefore, the plaintiff is not entitled to the relief claimed by him. The learned trial Court tried the suit and concluded that there is a dispute in regard to Khasra No. 995 The fact that the plaintiff was owner in possession of Khasra Nos. 993 and 994, even though on the basis of wrong Patta was not disputed. The learned trial Court held that the plaintiff has failed to prove his possession and ownership over Khasra No. 995 or that he was using the same as courtyard of his house/shop. It was also held that the defendant have failed to prove any right of passage over Khasra No. 995 and as such, the suit of the plaintiff was dismissed by the learned trial Court, which findings on appeal were affirmed. 3 I have heard the learned counsel for the parties and have also gone through the record. During the course of arguments, the learned counsel appearing for the appellant has taken this Court to the findings recorded by the learned trial Court particularly that the report of the Local Commissioner was not proved or that the plan was submitted to the Cantonment Board for approval, but no oral or documentary evidence was referred to by the learned counsel for the appellant which was not considered by the learned trial Court or by the learned first Appellate Court or it was wrongly interpreted by both the Courts below. There can be no reappraisal of evidence until and unless it is submitted that the learned trial Court or the first Appellate Court has failed to consider any particular oral evidence or documentary evidence or has misconstrued the evidence and there has to be reappraisal of the evidence by this Court. A perusal of the substantial question of law on which the appeal was admitted shows that no substantial question of law arises from the one framed by the learned counsel for the appellant and the only allegations made are that the Courts below had misconstrued the oral and documentary evidence and has drawn wrong inference. A plea was also taken that the suit could not have been dismissed on the ground that State was a necessary party. In regard to this submission that the State was not a necessary party, it is clear that the plaintiff has claimed relief of declaration and injunction in regard to the suit land which was recorded in the revenue record in the ownership of State of H.P. and in ownership of Forest Department. Once the relief of declaration was being sought by the plaintiff and not only the relief of permanent injunction, the 4 State was necessary party and in the absence of State as party, the relief of declaration could not have been granted in favour of the plaintiff. However, I agree that the suit cannot be dismissed on the ground that the State was not impleaded as a party and time has to be given to the plaintiff to implead the State as necessary party, but that situation would have arisen once the plaintiff had proved his case by oral or documentary evidence and as both the Courts below had come to the conclusion that the plaintiff was not entitled to the relief as claimed by him and no opportunity can be given to the plaintiff to implead the State as a party now. In view of the above discussion, it is clear that no case is made out for reappraisal of the evidence and as such, the findings recorded by both the Courts below are liable to be affirmed. There is no merit in the appeal filed by the appellant, which is dismissed accordingly. Parties are left to bear their own costs. Record be sent to the Court(s) concerned. ( V.K. Ahuja ), May 16, 2008 Judge (BSS)