IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 285 of 2000 Date of decision: 15.11.2010 Dharmi …Appellant. Versus Jania and ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. Ajay Kumar, Advocate. ________________________________________________________ Kuldip Singh , Judge (Oral) This appeal is directed against the judgment and decree, dated 20.5.2000, passed by the learned Additional District Judge, Circuit Court at Rohru in Civil Appeal No. 1-S/13 of 1999 reversing the judgment and decree, dated 1.12.1998 passed by the learned Sub Judge 1st Class, Court No.3, Addl. Charge Court No.2, Rohru in Civil Suit No. 109-1 of 1995 decreeing the suit of the appellant. 2. The facts, in brief, are that the appellant had filed a suit for permanent prohibitory injunction against the respondents in respect of land comprised in Khasra No. 1468, measuring 0-04-35 hecatres, situated in Chak Karalash, Tehsil Rohru, District Shimla, H.P. (for short, the ‘suit land’). The further case of the appellant is that earlier the suit land was owned and possessed by Budhu and 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. yes 2 Gokhari, parents of the appellant. On their death, the appellant became owner. The respondents have no right, title or interest over the suit land. The respondents have threatened to oust the plaintiff from the suit land. In these circumstances, the suit was filed and a prayer for permanent prohibitory injunction was made against the respondents. 3. The suit was contested by the respondents by filing written statement. It has been pleaded that the appellant is not owner of the suit land. The entries showing him owner of the suit land are wrong, illegal and without jurisdiction. The attestation of mutation of inheritance in favour of the appellant is also wrong. The appellant has no right to file the suit on the basis of revenue entries, which are wrong. 4. The further case of the respondents is that respondent No.1 exchanged Khasra No. 325 with one Gita Ram and during settlement, Khasra No. 325 was divided into Khasra Nos. 1467, 1469, 1469/1 and 1471. Khasra No. 515/324 does not figure in the old musabi. The musabi prepared during recent settlement is wrong. The respondent No.1 claimed himself to be the owner in possession of the suit land. In the alternative, the ownership by way of adverse possession was also claimed. The plea of res judicata was raised. The preliminary objections of lack of cause of action, non-joinder of necessary parties, locus-standi and maintainability were also raised. The appellant filed replication and reiterated the stand taken by him in 3 the plaint. On the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is owner in possession over the suit land, as alleged? OPP. 2. Whether the defendant interfered with the possession of the plaintiff, as alleged? OPP 3. Whether the suit is not maintainable, as alleged? OPD 4. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 5. Whether the plaintiff is estopped to file the present suit, as alleged? OPD. 6. Relief. 5. The issues No. 1 and 2 were answered in affirmative, issues No. 3, 4 and 5 in negative and the suit was decreed by learned trial court on 1.12.1998. In appeal, the learned Additional District Judge allowed the application of the respondents for leading additional evidence and had taken on record some documents by way of additional evidence and the appeal was allowed on 20.5.2000 and the suit was dismissed. Hence, the second appeal, which has been admitted on following substantial questions of law:- 1. Whether there are no legal and valid grounds to allow application under order-41, rule-27 CPC by the Ld. Lower Appellate Court and this has caused injustice to the appellant. 2. Whether lower appellate court has failed to exercise jurisdiction in accordance with law due to non- compliance of the provisions as contained in High Court Rules and Orders whereby there being boundary dispute a Local Commissioner was required to be appointed. 4 3. Whether the suit having been filed on the basis of entries in revenue record prepared during the current settlement could not be dismissed and the same could be decided with the aid of old as well as new revenue record. 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the learned Additional District Judge has erred in allowing the application for additional evidence. It has been submitted that there was boundary dispute between the parties and, therefore, Local Commissioner should have been appointed to ascertain common boundary of the holdings of the parties. The suit, which was filed on the basis of current settlement entries, could not have been decided with aid of old as well as new revenue record. It has been submitted that as per Ext. PW1/A and Ext. X2, the appellant is owner in possession of the suit land. The respondents are claiming title as well as possession over the suit land and, therefore, no further evidence is required for decreeing the suit when the appellant has proved that he is owner in possession of the suit land. The learned counsel for the respondent has supported the impugned judgment and decree and has submitted that learned lower Appellate Court has allowed the application for additional evidence after recording reasons and the appellant has failed to prove his case. The learned counsel for the respondent has prayed for dismissal of the appeal. 7. The respondent in the lower Appellate Court had filed an application under Order 41 Rule 27 CPC for leading additional 5 evidence. It has been pleaded in the application that respondent No.1, herein, being an illiterate old man could not obtain the revenue record mentioned in the application earlier and when he came to know about the revenue record, he obtained copies and, thereafter, filed the application for leading additional evidence. This application was opposed by the appellant, herein, but the learned lower Appellate Court allowed the application on 17.5.2000 and permitted the respondents, herein, to lead additional evidence. The appellant was given opportunity to rebut the additional evidence, but no evidence in rebuttal was produced by the appellant herein. The learned lower Appellate Court by way of additional evidence has permitted only documentary evidence of revenue record. It cannot be said that by allowing the documentary evidence of revenue record, the Appellate Court below has committed an error of law. The lower Appellate Court had given an opportunity to the appellant to rebut the evidence, but as per order, dated 17.5.2000 of learned Additional District Judge, the appellant herein has stated that no evidence in rebuttal was intended to be produced. In these circumstances, in my opinion, the Appellate Court below has committed no error in allowing the application for leading additional evidence. Hence, substantial question of law No.1 is decided against the appellant. 8. The learned counsel for the appellant has submitted that the learned lower Appellate Court has erred in not ascertaining the boundaries of two holdings of the appellant as well as of the respondents by appointing Local Commissioner. The suit has been 6 filed with respect to specific Khasra No. 1468. The appellant is claiming ownership and possession over land comprised in Khasra No. 1468, whereas respondent No.1 is also claiming ownership and possession of Khasra No. 1468. In the alternative, respondent No.1 is claiming adverse possession on this Khasra number. In view of respective case of the parties, there is no question of any boundary dispute, inasmuch as both the parties are claiming ownership and possession of Khasra No. 1468. Hence, this is not a case where the boundary of two Khasra numbers is in dispute and in order to ascertain the boundary aid of local Commissioner is required. Hence, substantial question of law No.2 is also decided against the appellant. 9. Budhu etc. are recorded owners in possession of land comprised in Khasra No. 1468 vide misal haquiat, Ext.PW1/A. There is a note on Ext. PW1/A that vide mutation No. 47 the estate of Budhu has devolved on Dharmi and Smt. Gokhari and vide mutation No. 48, the estate of Smt. Gokhari has devolved on Dharmi. Thus, as per Ext. PW1/A, Dharmi is one of the co-sharers in possession of land comprised in Khasra No. 1468, his possession is also shown over Khasra No. 1468 in misal haquiat, Ext. X2 relied by the respondents. The respondents in their written statement have pleaded that respondent No.1 has exchanged Khasra No. 325 with one Gita Ram, who was owner of the suit land and during settlement, Khasra No. 325 was divided into Khasra Nos. 1467, 1469, 1469/1 and 1471. The respondents have pleaded that division of Khasra No. 325 has been done wrongly, but it has not been stated that Khasra No. 1468 was a 7 part of Khasra No.325. Thus, from the pleaded case of the respondents, it does not emerge that Khasra No. 1468 is a part of Khasra No. 325. 10. It has been submitted that earlier settlement carried out in the area was set aside by this court in Gian Chand and others versus The State of H.P. and others, 1994(2) Sim.L.C. 104. It has been submitted by the learned counsel for the appellant that later on, Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996 was passed. This amendment was challenged in the Supreme Court and the Supreme Court decided the issue in Civil Appeal No. 1678 of 2002 on 8.7.2009 and the Supreme Court has upheld the settlement operation carried out earlier. 11. The appellant has proved that he is owner in possession of the suit land by producing oral as well as documentary evidence on record in the form of Ext. PW1/A and Ext. X2. On the contrary, the respondents are claiming ownership of the land. They are also alternatively claiming adverse possession on the suit land. The respondents have failed to prove their ownership and possession of the suit land. The learned lower Appellate Court misconstrued the material evidence on record, more particularly, Ext.PW1/A and Ext. X2. Hence, substantial question of law No.3 is decided in favour of the appellant and against the respondents. 12. No other point has been urged. 13. In view of above discussion, the appeal is allowed, the impugned judgment and decree, dated, 20.5.2000 passed by the 8 learned lower Appellate Court are set aside and the judgment and decree, dated 1.12.1998 passed by the learned trial court are restored. No order as to costs. November 15, 2010. ( Kuldip Singh ) (pankaj) Judge.