IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.2 of 1997. Judgment reserved on: 8th September, 2011. Date of Decision: October 19, 2011. _______________________________________________________ Shri Karta Ram and others ..Appellants. Versus Kumari Kaushalya and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes, For the appellants: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For respondents No.1 Mr. Bhupender Gupta, Senior Advocate to 3, 6, 8 to 10 & 11(d): with Mr. Neeraj Gupta, Advocate. Names of respondents No.4 & 5 deleted. Respondent No.7(a) exparte. _________________________________________________________ SURINDER SINGH, J. The present Regular Second Appeal of the plaintiffs/appellants under Section 100 of the Code of Civil Procedure was admitted on the following substantial questions of law: 1. Whether the defendants Kaushlya, Damyanti and Shanta being represented by their father Sh. Mahesh Ram through the General Power of Attorney executed by them before filing of the suit, cannot be deemed to have not been served in the suit? Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Whether the written statement filed in the suit on 20.2.1992, is on behalf of the defendants including defendants No.8 to 10? 3. Whether in view of the similarity of the cause of action is against the defendants and the fact that Shri Mahesh Ram was the attorney of defendants Kaushlya, Damyanti and Shanta, represented them, therefore, the findings of the trial Court could not be up-set? 2. The brief facts giving rise to the present appeal can be stated thus. The appellants, hereinafter referred as “plaintiffs” claimed that their father Nanda was a tenant qua the suit land and with the enforcement of HP Tenancy and Land Reforms Act, 1974, acquired the ownership. The plaintiffs in their suit alleged that Shri Mahesh Ram, predecessor-in-interest of the respondents, to be referred as “defendants” filed an application for correction of revenue entries qua the suit land claiming themselves into its possession. The defendants being the persons of quarrelsome nature caused threatening to the possession of the plaintiffs, hence sought decree for permanent prohibitory injunction. 3. The learned trial Court registered the suit and issued summons to the defendants. Except - 3 - defendants Kumari Kaushlya, Damyanti and Shanta daughter of Mahesh Ram all were served. Thus vide order dated 19.10.1990 they were ordered to be served on filing of process fee etc. but despite repeated and reasonable opportunities, no steps were taken, as such the suit against them was dismissed. 4. The written statement was only filed by defendant Mahesh Ram, whereby he averred that defendants are in possession of the suit land and the mutation conferring the proprietary rights upon them was cancelled by the Collector in appeal filed under the Tenancy Act aforesaid. The application for seeking correction was withdrawn by defendant Mahesh Ram and the report of the field revenue agency on an enquiry did not find the possession of the plaintiffs. Thus, prayed for the dismissal of the suit. 5. On the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiffs are in possession of the suit land and defendants are causing interference in the possession? OPP. 2. Relief. - 4 - 6. Plaintiff Karta Ram stepped into the witness- box and testified his claim as averred in the plaint and also stated about interference in their possession by the defendants. He also examined PW2 Kishan Singh and PW3 Shyam Lal. Contra defendants examined DW1 Mahesh Ram (defendant No.11). He produced the General Power of Attorney Ext.DW1/A of his daughters Kaushlya, Damyanti and Shanta, against whom the present suit was dismissed. He also placed reliance on the report of field Kanungo Ext.D1 prepared on the correction application which was subsequently withdrawn. He stated that he had sown barley (Jae) crop on the suit land which fact find mentioned in the report aforesaid. He stated that in the year 1968 they had given the land aforesaid to the father of the plaintiffs to cultivate only one crop and its possession was handed over back to them in the same year. He put his reliance on Jamabandi Ext.DW1/B and Girdawari Ext.DW1/C. DW2 Mohinder Singh, Land Record Kanungo, stated that correction application was marked to him for spot enquiry and the report was prepared and sent to Tehsildar. DW3 - 5 - Jai Singh stated that he was present during spot inspection and the defendants were found in possession of the suit land. 7. The learned trial Court after going through the evidence and hearing the learned Counsel for the parties did not find any substance in the plea raised by the defendants, hence their claim was rejected, but however, while discussing the evidence of parties found substance in the plea raised by the plaintiffs on the above issue, as such suit was decreed. 8. It is worth noting that none of the defendants except defendants Kaushalya, Damyanti and Shanta daughters of Mahesh Ram (defendant No. 11) filed the appeal. As already stated above, the suit was dismissed against the daughters of Mahesh Ram. They assailed the impugned judgment and decree in appeal before the learned District Judge precisely on the grounds that the suit was dismissed against them but the learned trial Court decreed the suit for injunction against all the defendants, including them. Further they claimed possession and assailed the judgment - 6 - and decree being incoherent and against the evidence on record. 9. The learned first Appellate Court taking note of the operative portion of the trial Court Judgment that the decree was also passed against the defendants aforesaid against whom the suit stood dismissed earlier vide order dated 7.10.1991 allowed the appeal and the judgment and decree qua them was upset being unsustainable. Hence, the present appeal. 10. Shri G.D. Verma, learned Senior Advocate duly instructed by Shri B.C. Verma vehemently argued that the learned first appellate Court took a hyper-technical view of the matter. The learned Counsel referred to the statement of Mahesh Ram (DW1) defendant No.11 recorded before the learned trial Court that he was the General Power of Attorney holder of his daughters Kaushlya, Damyanti and Shanta copy whereof is Ext.DW1/A dated 16.7.1990. Thus aforesaid lady defendants stood served through him. He filed and verified written statement claiming the possession of defendants. They had complete knowledge of the proceedings - 7 - and were duly represented through their father Mahesh Ram. Thus they are deemed to have joined proceedings, therefore, order dated 7.10.1991 also passed by the learned trial Court dismissing the suit against them was not sustainable. 11. Whereas Shri Bhupender Gupta, learned Senior Advocate duly assisted by Shri Neeraj Gupta, Advocate, supported the view taken by the learned First Appellate Court and further ventilated that Shri Mahesh, father of said defendants was himself in his individual capacity a party and the summons were not sent to his respondent-daughters through him neither he was bound to appear for them nor respondents are deemed to have been served through him. Further, such a plea was not raised before the first Appellate Court. Therefore it cannot be allowed to be raised for the first time now in second appeal which also involves no question of law much less the substantial one, hence deserves to be dismissed. 12. On having heard the learned counsel for the parties and on the perusal of the record, I find no infirmity in the impugned judgment and decree - 8 - passed by the first Appellate Court. Since the learned trial Judge had erred in decreeing the suit against defendants-appellants since it stood already dismissed against them as per the order dated 7.10.1991 as having failed to take requisite steps for their service despite according repeated and reasonable opportunities and this order was not challenged in the superior Court by the plaintiffs. This plea raised for the first time in second Appeal cannot be allowed to be raised. 13. Further, the General Power of Attorney executed by Ms. Kaushlya, Damyanti and Shanta daughters of Mahesh Ram (defendant No.11) in favour of their defendant father Mahesh Ram would not automatically deemed to be their service, if no notice was issued to them for want of taking steps by the plaintiffs. Even otherwise, written statement which is placed on record is filed only in individual capacity by Mahesh Ram (defendant No.11). Although he asserted the possession of the defendants in the suit land but by no stretch of imagination, it could be said to have been filed for and on behalf of the defendant-daughters. After - 9 - the dismissal of the suit against the defendants, Kaushlya, Damyanti and Shanta it only survived against the remaining defendants and the defendants Kaushalya, Damyanti and Shanta could not have been injuncted. Therefore, the appeal filed by them was rightly dismissed by the learned trial Court, which requires no interference by this Court in the present appeal. As such, the substantial questions of law are accordingly answered. 14. No other point urged or pressed before me. 15. In view of the foregoing findings, there is no merit in the appeal, which is accordingly dismissed. Costs on parties. CMP No.736 of 2008. In view of the dismissal of the main appeal, this application has been infructuous. October 19, 2011. (Surinder Singh), (rc/Pds) Judge.