IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 492 of 2000 and CMP No. 756 of 2000. Date of decision: 6.5.2010. Dharam Chand & anr. ….. Appellants. Vs. Harbans Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ashish Verma, Advocate vice Mr. Anuj Nag, Advocate. For the Respondent : Mr. Himmat Negi, Advocate vice Mr. Surinder Saklani, Advocate. Kuldip Singh, Judge (Oral). The defendants have come in appeal against the judgement, decree dated 12.5.2000 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 76-K/XIII/99 affirming the judgement, decree dated 1.4.1999 passed by learned Sub Judge Ist Class (II), Kangra in Civil Suit No. 287/91/90. 2. The facts in brief are that respondent had filed a suit for declaration and permanent prohibitory injunction against the appellants on the grounds that he is owner in possession of land bearing khasra No. 352, measuring 0-03-10 hectares, Mohal Kachhrerh, Mauza Mumta, Tehsil and District Kangra vide jamabandi 1984-85. The appellants have no right, title or interest in the suit land. Whether the reporters of the local papers may be allowed to see the Judgment? …2… The appellants had started causing interference in the possession of the respondent in June 1990 and therefore, the suit was filed. 3. The appellants have contested the suit by filing the written statement and they have taken preliminary objections of lack of cause of action, locus-standi, estoppel maintainability and jurisdiction etc. On merits, the appellant No. 1 had pleaded that he was non-occupancy tenant under Smt. Bhuti Devi predecessor-in- interest of respondent and now he is owner in possession of the suit land under the H.P. Tenancy and Reforms Act, 1972. The ownership and possession of respondent was denied. The revenue entries not showing appellant No. 1 as non-occupancy tenant on the suit land are wrong. The Assistant Collector, 2nd Grade, Kangra had ordered correction of revenue entries in favour of appellant No.1. 4. The replication was filed by the respondent in which stand of appellants was controverted and respondent reiterated his stand, which was taken by him in the plaint. It was pleaded that Assistant Collector, 2nd Grade, Kangra passed the order without affording the opportunity of hearing to the respondent. On the pleadings of the parties the following issues were framed:- 1. Whether the plaintiff is entitled to the relief claimed? OPP. 2. Whether the suit is within time? OPP. 3. Whether the defendant No. 1 is a tenant of the suit land and now has become owner thereof as alleged? OPD. 4. Whether the plaintiff has no locus standi? OPD. 5. Whether the plaintiff is estopped by his act and conduct? OPD. 6. Whether the suit is not maintainable? OPD. 7. Whether the court has no jurisdiction to try this suit? OPD. 8. Whether the suit is not properly valued? OPD. …3… 9. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD. 10. Relief. The issues No.1 and 2 were decided in affirmative and issues No. 3 to 9 in negative and the suit was decreed by learned Sub Judge on 1.4.1999. The appellants had assailed the decision dated 1.4.1999 in the lower appellate court but learned District Judge dismissed the appeal on 12.5.2000, and, in these circumstances, the defendants have filed the second appeal, which has been admitted on the following substantial question of law:- Whether the parties who are not in possession of the property can be issued injunction in their favour by the Court? 5. I have heard Mr. Ashish Verma, learned counsel for the appellants and Mr. Himmat Negi, learned counsel for the respondent and have also gone through the record. Mr. Verma has submitted that the two courts below have not appreciated that respondent has failed to prove his possession on the suit land, therefore, he is not entitled to a decree of injunction. He has submitted that the appellants could not place on record order dated 15.7.1991 of Assistant Collector, 2nd Grade vide which correction of revenue entries were ordered in favour of appellant No.1. He has submitted that in these circumstances, an application under Order 41 Rule 27 CPC, being CMP No. 756 of 2000, has been filed in this court and he has prayed for allowing of the said application. 6. The learned counsel appearing on behalf of the respondent has supported the impugned judgement, decree. It has …4… been submitted by learned counsel for the respondent that Financial Commissioner on 20.12.2006 had accepted the recommendations of the Divisional Commissioner and set-aside the order of Assistant Collector, 2nd Grade. He has opposed CMP No. 756 of 2000. 7. The application for additional evidence filed by the appellants is taken up first. The appellants intend to place on record the order dated 15.7.1991 passed by the Assistant Collector, 2nd Grade. The suit was filed on 20.6.1990. The order of Assistant Collector, 2nd Grade is dated 15.7.1991. The application for additional evidence was filed in this court on 10th August 2000. The appellants have tried to give explanation that though the order dated 15.7.1991 was handed over to the counsel for the appellants in the courts below but that counsel did not place the order dated 15.7.1991 on record. The explanation given by the appellants in the application is not acceptable. There is no explanation why the counsel had not placed the order dated 15.7.1991 on record, if it was given to the counsel, as alleged in the application. In the application, there is no explanation why the application for additional evidence was not filed even in the lower appellate court. In any case, the order dated 15.7.1991 has ultimately been set-aside, as contended by the learned counsel for the respondent, which has not been denied by the learned counsel for the appellants. In these circumstances, the additional evidence sought to be placed on record will not serve any purpose. Hence, the application being CMP No. 756 of 2000 is rejected. …5… 8. PW 1 Harbans Singh respondent in his statement has stated that he is in actual possession of the suit land after it was purchased from Bhuti Devi and before its purchase the suit land was in possession of the vendor. The statement of PW 1 is corroborated by the entry in missal hakiyat 1974-75 Ex. P-2 and jamabandi for the year 1984-85 Ex. P-1, wherein Bhuti Devi has been recorded in possession of the suit land. The possession of Harbans Singh on the suit land has been corroborated by PW 2 Bihari Lal and PW 3 Jagdish Chand, Pradhan and member of the local Panchayat, respectively. The respondent No. 1 is recorded in possession of the suit land in the jamabandi Ex. P-5 for the year 1994-95 and girdawari Ex. P-6. The two courts below after due appreciation of evidence on record have recorded a finding of fact that respondent is in possession of the suit land. The learned counsel for the appellants has not pointed out that any inadmissible evidence has been considered and the evidence which goes to the root of the case has been ignored. There is no perversity in the impugned judgement and decree. The substantial question of law, referred above, is decided against the appellants. 9. No other point has been urged. 10. The result of above discussion, the appeal fails and is accordingly dismissed. May 6, 2010. ( Kuldip Singh ), (Hem) Judge.