IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 538 of 2008. Reserved on: 05.07.2011. Decided on: 12.07.2011. _____________________________________________________ Mikesh Kumar. …Appellant. -Versus- Narayan Singh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant. : Mr. Dushyant Dadhwal, Advocate. For the respondents. : Mr. Ashwani K. Sharma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 01.09.2008, passed by the learned District Judge, Kangra at Dharamsha in Civil Appeal No. 81- P/XIII/2007. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) had instituted a suit against the appellant-defendant (hereinafter referred to as ‘the defendant’ for brevity sake) for possession of one double storeyed Slate/Tin Posh shop 25x16 situated in Abadi Deh land contained in Khata No. 246 min, Khatauni No.427 min, bearing Khasra No. 458, measuring 0-09-77 hectares situated in Mohal Kachhal Jaggian, Mouza and Tehsil Jaisinghpur, District Kangra, H.P.. According to the plaintiffs, they were the joint 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - owners of the suit property contained in Abadi Deh land comprised in Khata No. 246 min, Khatauni No. 427 min, bearing Khasra No. 458, measuring 0-09-77 hectares, situated in Mohal Kachhal Jaggian, Mouza and Tehsil Jasinghpur, District Kangra, H.P.. The shop was rented out by the plaintiffs to the father of the defendant at monthly rent of `100/- and after his death, the defendant inherited the tenancy and had been continuing as a tenant. He was served with a notice under Section 106 of the Transfer of Property Act, whereby he was informed that his tenancy stood terminated w.e.f. 31.10.2004. The defendant has not filed any reply to the notice. It is in these circumstances, the present suit has been filed. 3. The suit was resisted by the defendant. It was denied by the defendant that the plaintiffs were joint owners of the suit property. According to he defendant, the plaintiffs got no right, title or interest in the suit property which was owned and possessed by the defendant and his family members. It was also denied that the suit premises were rented out to the father of the defendant. According to him, father of the defendant was owner and in possession of the suit premises and after his death, his legal heirs are owners and in possession of the suit premises. 4. Replication was filed. The learned trial Court framed the issues on 29.04.2006. Trial Court decreed the suit on 30.08.2007. The defendant preferred an appeal before the learned District Judge, Kangra. The same was dismissed on 01.09.2008. Hence, this Regular Second Appeal. It was admitted on all the substantial questions of law appended with the grounds of appeal. - 3 - 5. Mr. Dushyant Dadhwal, learned counsel for the appellant has vehemently argued that both the Courts below have mis-red and mis-construed the oral as well as documentary evidence. According to him, the plaintiffs have failed to prove their possession over the suit premises. 6. Mr. Ashwani K. Sharma, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 7. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 8. One of the plaintiffs Narayan Singh has appeared as PW-2. He has testified that the plaintiffs and their predecessors- in-interest had constructed the shop in dispute long back. Initially, Shri Thakur Dass, the predecessor-in-interest of plaintiffs No. 4 to 6 had been running the business in the suit premises. He got the electric meter installed in the disputed premises. Thereafter, Shri Kripal Singh had been rented out the disputed premises on the rental charge of `100/- per month. Shri Kripal Singh died and thereafter the defendant had started doing the business of electronic goods in the premises. He was requested to vacate the premises in dispute. A notice was served upon the defendant on 05.10.2004 vide Ex.PW-1/A, which was sent through registered post as per postal receipt dated 07.10.2004, Ex. PW-1/B. The defendant had received the notice on 09.10.2004 as per acknowledgement Ex. PW-1/C. PW-2 has denied the ownership and possession of the defendant. - 4 - 9. PW-3 Shri Suresh Kumar, who was working as Senior Assistant in H.P.S.E.B at Jaisinghpur has brought the summoned record. He has stated that Electric Meter No. JC-17C/S was installed on the application of Thakur Dass on 21.01.1965. Shri T.C. Rana, Advocate has appeared as PW-1. He deposed that he had given a legal notice Ex. PW-1/A to the defendant on 05.10.2004 on behalf of the plaintiffs. The postal receipt of the same is Ex. PW-1/B and the acknowledgement is Ex. PW-1/C. He also stated that the defendant did not give any reply of the notice. 10. Defendant has appeared as DW-1. He deposed that they were in possession of the suit premises and before them, his father was the owner of the suit premises. He further stated that he never took the suit premises on rent in the year 1990 from the plaintiffs and never gave any rent to them. However, he has admitted in cross-examination that the electricity connection was in the name of Shri Thakur Dass. He also admitted that his predecessors never objected to the installation of Electricity Connection in the name of Thakur Dass. He denied his signatures on acknowledgement Ex. PW-1/C. He stated that his ancestors belong to Sandhole and further admitted that his ancestors are not having any land in Kachhal Jaggian. He also admitted that Thakur Dass and plaintiffs were the permanent resident of Kachhal Jaggain. He further admitted that the suit premises were ‘Abadi-Deh’. 11. Plaintiffs have also placed on record the copy of Pedigree Table of Mohal Kachhal Jaggain, Ex. P-2. It is evident from the perusal of Ex. P-2 that plaintiffs Naryan Singh, Ranbir Singh, Dulo Ram, Subash Chand and Bhumi Singh are the legal - 5 - heirs of Thakur Dass, Paras Ram, Faturia and Hari Singh. It is also admitted fact that the suit land bearing Khasra No. 458 is ‘Abadi Deh’. According to Jamabandi for the year 2000-2001, Ex. P-1, the description of this Khasra number was ‘Abadi Deh’ in the columns of ownership and possession. Thus, it is proved by the plaintiffs that they and their predecessors-in-interest were estate right holders of revenue estate Kachhal Jaggian. This fact has also been admitted by the defendant that his ancestors were not having any land in Kachhal Jaggian. He also admitted that his ancestors belong to village Sandhole. Accordingly, the plaintiffs had become owners of the suit premises being permanent resident of Mohal Kachhal Jaggian. The defendant has not placed any tangible evidence on record to establish his ownership and possession over the suit land. There is no revenue entry in his name or in the names of members of his family. 12. Mr. Dushyant Dadhwal, learned counsel for the appellant has also argued that the documents mark ‘A’ to mark ‘D’ could not be taken into consideration by the Courts below. These documents came into existence in 1965. These documents are 30 years’ old and thus these are admissible in evidence. The fact that the electricity meter has been installed in the name of Thakur Dass gives credence to the case of the plaintiffs that they were owners of the suit premises. The installation of electricity meter by Thakur Dass has never been objected to by the defendant. The defendant has been served with a notice dated 05.10.2004, Ex. PW-1/A and he has put his signatures on the receipt Ex. PW-1/C. According to the notice, his tenancy is to be determined w.e.f. 31.10.2004. The Courts below have correctly appreciated the oral - 6 - as well as documentary evidence while coming to the conclusion that the predecessors-in-interest of the plaintiffs were owners of the suit premises and initially defendant’s father Shri Kripal Singh was the tenant and after his death, the premises were inherited by the defendant. 13. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge July 12, 2011. (bhupender) - 7 -