IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 5 of 1995 Judgment reserved on :29.4.2011 Date of decision: 20.5.2011 Satya Prakash and others …Appellants. Versus Jagdish and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants : Mr. Romesh Verma , Advocate. For the respondents : Mr. Ramakant Sharma, Advocate. Kuldip Singh , Judge The decree of reversal dated 9.11.1994 in Civil Appeal No. 60 of 1988 passed by learned District Judge, Hamirpur setting-aside judgment, decree dated 30.3.1988 passed by learned Sub Judge 1st Class (II) Hamirpur in Case No. 205 of 1983 has been assailed by the appellants/defendants in the second appeal. 2. The facts, in brief, are that Smt. Kamla Devi since deceased and respondent No.2 had filed a suit for declaration that they were owners in possession of Taur measuring 30 x 30 feet bounded by the courtyard of Amar Nath on the East, house of Satya Parkash on the West, house of Amar Nath on the North and a path on the South situated on Khasra No.74 Abadi Tika, Gaura Manjhla, Tehsil and District Hamirpur 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 as per site plan. The appellants have no concern with the suit land, consequential relief of permanent prohibitory injunction was also prayed. 3. The further case of the respondents was that there was cow- shed of respondent No.2 and late Dina Nath on khasra No. 74 which collapsed about 9/10 years ago. On 20.1.1981 late Dina Nath sold his half share in the Taur to Smt. Kamla Devi, plaintiff No.1 since deceased, who had been coming in possession of her share as owner. 4. It has been alleged that during settlement in the year 1981, Amar Nath in connivance with the settlement staff got the Taur in question entered in favour of Amar Nath and Smt. Gaytri Devi on the misconceived statement that late Dina Nath had exchanged the Taur with Amar Nath and Gaytri Devi, whereas no such exchange had taken place. On 1.6.1961 Smt. Sahib Devi etc. exchanged Khasra Nos. 234, 235 with Amar Nath and Smt. Gaytri Devi but during that exchange the Taur in question was not exchanged. The report of Naib Tehsildar, Settlement upon which the Settlement Officer had ordered the incorporation of the names of the appellants as owners of the said Taur was wrong and contrary to the factual position. The suit filed by Amar Nath concerning the half share in the Taur had been dismissed by the learned Sub Judge, Hamirpur on 26.10.1983. The findings of the Court in judgment dated 26.10.1983 are now resjudicata. The appellants refused to accept the claim of the respondents, therefore, the suit was filed. 5. The suit was contested by appellants by filing written statement in which several preliminary objections such as maintainability, valuation, jurisdiction, identification of the suit land, limitation, estoppel were taken. On merits, it was pleaded that there was no Taur in 3 existence for which the suit has been filed. There was no cow-shed of respondents on Khasra No.74 nor they were in possession over the suit land. The appellants have shown their ignorance of any sale by Dina Nath. It was also pleaded that such sale, if any, was not binding on the appellants. Dina Nath was neither owner nor in possession of the suit land nor he could pass valid title. 6. The appellants claimed possession of the suit property and also supported the order of the settlement authority. The objection of respondent No.2 Smt. Sheela was considered by the Settlement Officer and was rejected in her presence holding that the suit property was owned and possessed by appellants. It has been alleged that exchange took place in the year 1961 with Sahib Devi and others, mutation No. 168 was sanctioned. The exchange was of an area measuring 19 marlas of the appellants and 13 marlas was given to appellants in cultivated land and remaining area was given in Abadi khasra No. 74. It has been alleged that since then the appellants are coming in peaceful possession of the land in dispute. The respondents are not entitled to any relief. The appellants never acknowledged the ownership of the respondents of the disputed land. The replication was filed. 7. On the pleadings of the parties the following issues were framed :- 1. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP 2. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 4 3. Whether the plaintiffs are owners in possession of the land in suit? OPP 4. Whether the site plan appended with the plaint is correct? OPP 5. Whether the suit is barred by limitation? OPD 6. Whether the plaintiffs are estopped by their act and conduct from filing the present suit?OPD 6-A. Whether the suit is barred by the principle of res-judicata as alleged? OPD 7. Relief. The issues No.1, 3, 4, 5, 6 and 6-A were answered in negative, issue No.2 in affirmative and the suit was dismissed on 30.3.1988. In appeal on 9.11.1994 the judgment, decree dated 30.3.1988 were set-aside and decree for possession of the suit land measuring 30’ x 30’ out of khasra Nos. 73, 74 and 75 vide Misal Hakiyat for the year 1981-82 was passed in favour of the respondents by holding that the respondents shall have one half share each. Hence, second appeal, which has been admitted on the following substantial question of law:- “Whether the District Judge has correctly read and interpreted the documents Exts.P-4, D-3 and DW-5/C for holding that the respondents-plaintiffs have title over the suit land and they are entitled to decree of possession granted in their favour?” 8. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellants, it has been submitted that the learned District Judge has mis-construed and mis- 5 interpreted the documents Ex.P-4, Ex.D-3 and Ex.DW-5/C for holding that respondents have title over the suit land and they are entitled to decree of possession. The learned counsel for the appellants have prayed for acceptance of the appeal and setting-aside of the impugned judgment, decree. The learned counsel for the respondents has supported the impugned judgment, decree. 9. Ex.P-4 is the copy of plaint dated 19.1.1982 in Civil Suit No. 11 of 1982 titled Dina Nath vs. Smt. Kamla Devi decided on 26.10.1983 by learned Sub Judge (II), Hamirpur. Ex.D-3 is the copy of mutation No.168 and Ex.DW-5/C is the copy of report dated 22.6.1981. It has been contended on behalf of the appellants that the documents Ex.P-4, Ex.D-3 and Ex.DW-5/C have been mis-interpreted by the learned District Judge in returning the finding that the respondents have title over the suit property and they are entitled to decree for possession. The connected submission of the appellants is that they have already explained the admission, if any, made in the plaint Ex.P-4 and, therefore, the alleged admission is not binding on them and the alleged admission in Ex.P-4 cannot be made a ground for decreeing the suit of the respondents. Amar Nath being co-sharer in the suit land in Civil Suit No. 11 of 1982 had filed a suit for pre-emption on the basis of sale deed dated 20.1.1981 which was executed by Dina Nath in favour of Smt. Kamla Devi. The sale deed dated 20.1.1981 is Ex.P-1. 10. In paragraph 5 of the plaint, it has been pleaded that Amar Nath had filed a suit for possession on the basis of pre-emption regarding the disputed Taur which was sold by Dina Nath defendant No.5. In that suit, the ownership of the Taur in favour of Dina Nath was admitted which 6 was purchased by Smt. Kamla Devi. The suit was dismissed on 26.10.1983. 11. Amar Nath predecessor-in-interest of the appellants together with appellants in their written statement dated 12.2.1988 pleaded that ownership right of the Taur or its identity was not acknowledged by Amar Nath in the previous suit. If there was any admission of Amar Nath either in the plaint or finding by the trial Court that was in ignorance of true actual position existed on the spot as the identity of the property was not known to Amar Nath. 12. In Ex.P-4 copy of plaint in which Amar Nath was the plaintiff it was pleaded that half share of Taur measuring 30’ x 30’ was sold by Dina Nath in favour of Smt. Kamla Devi. The suit was dismissed on 26.10.1983 vide judgment Ex.P-1/A. The counsel for Amar Nath in the earlier suit had left the claim of Amar Nath over half share of vacant space 30’ x 30’ comprised in Khasra No. 74 which is in dispute in the present case. In the written statement dated 22.2.1988 it was too late for the appellants and Amar Nath to contend that the admission made by them in the written statement was in ignorance of the true actual position existed on the spot as the identity of the property involved in the earlier suit was not known to Amar Nath. This explanation is too naïve to be accepted. The basis of the earlier suit was the sale deed Ex.P-1 which was challenged in the suit for pre-emption filed by Amar Nath. 13. The learned counsel for the appellants has submitted that the admission can be explained lateron to be wrong and in these circumstances simply on the basis of admission of Amar Nath made in the plaint Ex.P-1 regarding suit property cannot be made base for 7 decreeing the suit of respondents. As a matter of legal proposition there is no dispute that admission can be explained or can be proved to be wrong lateron. The learned counsel for the appellants has cited some case law in support of this contention. It is not necessary to refer to that case law once there is no dispute to the principle of law. Once previous admission is not proved wrong then previous admission is the best piece of evidence against the person who has made the admission. In the present case the appellants have failed to make out a case that admission made by their predecessor-in-interest Amar Nath in plaint Ex.P-4 regarding the ownership of Taur in question was wrong or it was made in ignorance of his rights or some material factual aspect which was not within his knowledge when he made the admission regarding the Taur in question in plaint Ex.P-4. 14. The explanation given by appellants and Amar Nath regarding the admission made by Amar Nath in plaint Ex.P-4 vide written statement dated 12.2.1988 was an after thought. They filed written statement dated 29.9.1983, but when appellants and Amar Nath realized that Amar Nath had earlier made admission regarding the title of Smt. Kaushalya Devi regarding the Taur in question in plaint Ex.P-4, then they tried to explain the admission in the written statement dated 12.2.1988 but they have failed to substantiate the explanation regarding admission made in the written statement dated 12.2.1988. Moreover, counsel for Amar Nath vide judgment dated 26.10.1983 had left the claim of Amar Nath in the Taur in question. 15. Ex.D-3 is the mutation No. 168. The learned District Judge has recorded a specific finding that as per mutation order 19 marlas of 8 land comprised in Khasra Nos. 205, 206 and 207 was given to Amar Nath and Smt. Gayatri Devi predecessor-in-interest of appellants. The land comprised in Khasra Nos. 234, 235 was given to Sahib Devi etc. Dina Nath and Sheela Devi respondent No.2 had not exchanged their land with appellants or Amar Nath. In fact, Dina Nath and respondent No.2 were not party to the exchange, therefore, appellants cannot take any benefit from mutation No. 168 Ex.D-3. The appellants have failed to make out a case that the learned lower Appellate Court has erred in properly interpreting mutation No.168 Ex.D-3. 16. The last contention of the appellants is that they were found in possession of the Taur in question by Naib Tehsildar, Settlement in Ex.DW-5/C dated 22.6.1981, on the application of respondent No.2 which was filed by her during settlement. It appears Naib Tehsildar, observed regarding the possession of appellants in Ex.DW-5/C under total misconception of facts by observing that Dina Nath had lost his right in Tika Abadi on the basis of mutation No. 168 Ex.D-3, even though Dina Nath was not a party to the exchange. The learned District Judge with reasons has rejected the report dated 22.6.1981 Ex.DW-5/C. I am in agreement with the findings recorded by the learned District Judge for rejecting Ex.DW-5/C. 17. The learned District Judge has rightly appreciated the material on record. The inference drawn by learned District Judge in the impugned judgment regarding plaint Ex.P-4, mutation No. 168 Ex.D-3 and report dated 22.6.1981 Ex.DW-5/C cannot be said to be perverse. The appellants have failed to point out that Ex.P-4, Ex.D-3 and Ex.DW- 5/C have been mis-construed and mis-interpreted in the impugned 9 judgment. It has not been pointed out by the appellants that inadmissible evidence has been relied. In second appeal re-appreciation of evidence is not permissible. There is no merit in the appeal. The aforesaid substantial question of law is decided against the appellants. 18. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. May 20, 2011 (GR)