IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 210 of 2000. Judgment reserved on: 15.3.2010. Date of decision: 23.3.2010. Ali Mohammad ….. Appellant. Vs. Sudesh Kumar & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. Ramesh Sharma, Advocate vice Mr. N.K. Thakur, Advocate, for respondents No. 1 to 3. Kuldip Singh, Judge. The appellant was defendant No.1 in the suit and has assailed the judgement, decree dated 28.1.2000 passed by learned District Judge, Una in Civil Appeal No. 39 of 1993 affirming the judgement, decree dated 13.1.1993 passed by learned Sub Judge Ist Class, Court No. 3, Amb. 2. The facts in brief are that respondents No. 1 to 3 and one Simri Devi had filed a suit for permanent prohibitory injunction against the appellant and respondents No. 4 to 6 restraining them from removing the trees from land comprised in khasra Nos. 4105, 4109, 4110, 4114, 4081, 4104 and 4103 measuring 38-14 Kanals situated in village Dangoh Khas, Tehsil Amb, District Una. In the Whether the reporters of the local papers may be allowed to see the Judgment? …2… alternative, decree for possession was prayed. The case of respondents No. 1 to 3 is that they are in possession of the suit land as tenant at will under Kaushalya Devi, Babu Ram etc., prior to them the land remained under the tenancy of Baldev Prasad their predecessor. The appellant and respondents No. 4 to 6 are strangers to the suit land but they had threatened to take forcible possession of the suit land, they had also threatened to cut and remove the trees from the suit land. 3. The suit was contested on the grounds of maintainability, estoppel, valuation, mis-joinder of parties. On merits, it was submitted that appellant is in possession of the suit land as non- occupancy tenant for the last 40 years. The respondents No. 4 to 6 have no concern with the suit land, they have been unnecessarily impleaded in the suit. The appellant is an illiterate and poor person, Baldev Prasad did not allow any entry to appear in the revenue record. The replication was filed in which averments of the written statement were denied. The learned Sub Judge decreed the suit on 13.1.1993 and permanently restrained Ali Mohammad from interfering in possession of respondents No. 1 to 3 on the suit land. The decision dated 13.1.1993 was challenged in appeal by Ali Mohammad but that was dismissed on 28.1.2000. In these circumstances, the matter has come in second appeal, which has been admitted on the following substantial questions of law:- 1. Whether findings returned by the courts below stand vitiated in view of the dismissal of application under Order 6 Rule 17 of the Code of Civil Procedure? …3… 2. Whether documents Ex. D-1 to Ex. D-3 and oral evidence of defendants specifically of DW 2 Shri Sudesh Chand (owner) have been misread and mis-appreciated by the Courts below thereby vitiating the impugned judgments and decrees. 4. 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 application under Order 6 Rule 17 CPC was dismissed by the learned lower appellate court, and therefore, the impugned judgement stands vitiated. It has also been submitted that statement of DW 2 has been mis-read and mis-appreciated. The documents Ex. D-1 to Ex. D-3 and oral evidence has been misconstrued, therefore, submission has been made for setting aside the impugned judgement, decree. The learned counsel appearing for respondents No. 1 to 3 has supported the impugned judgement, decree. 5. The appellant had filed an application, under Order 6 Rule 17 CPC for amendment of the written statement. The appellant by way of amendment intended to take the plea that the suit is bad for non-joinder of owners of the land being necessary parties. The amendment application was dismissed by the learned District Judge alongwith the appeal on 28.1.2000. The respondents No. 1 to 3 had filed suit for permanent prohibitory injunction on the grounds that appellant and respondents No. 4 to 6 are strangers to the suit land but they are threatening to interfere in their possession on the suit land. In a suit for permanent prohibitory injunction what was to be seen was whether respondents No. 1 to 3 are in settled possession of …4… the suit land as against the appellant and respondents No. 4 to 6 and they are threatening to interfere in the possession of respondents No. 1 to 3, nothing else was to be considered. The appellant by way of amendment intended to take the plea that owners of the suit land are necessary parties. The amendment proposed by the appellant in the written statement was not necessary in order to adjudicate the real controversy between the parties. Therefore, the learned District Judge has rightly dismissed the application for amendment of the written statement. It has not been shown how the impugned judgement has vitiated on the dismissal of application for amendment of the written statement filed by the appellant. The substantial question of law No. 1 is decided against the appellant. 6. The appellant has taken the plea in the written statement dated 6.3.1988 that he is a non-occupancy tenant on the suit land for the last 40 years. The non-occupancy tenancy of appellant according to his plea relates back to the year 1948. In Ex. D-1 copy of girdawari the name of appellant Ali Mohammad has not been recorded. In copy of girdawari Ex. D-2 the name of Ali Mohammad has been shown on land comprised in khasra No. 2812 min for rabi 1960. It has not been explained on behalf of the appellant how the stray entry in khasra No. 2812 min for rabi 1960 came to be recorded in favour of Ali Mohammad when as per the stand of appellant he was inducted as non-occupancy tenant on the suit land in the year 1948. The khasra No. 2812 min has not been shown to be equivalent to khasra numbers of suit land mentioned in the plaint. The document Ex. D-3 has not been shown from record at the time of hearing. …5… 7. DW 2 has stated that they were the owners of the suit land. The land was allotted to them in the year 1958-59, thereafter they had given this land to Ali Mohammad on tenancy. This statement of DW 2 is in contradiction to the stand of Ali Mohammad taken by him in the written statement when he has taken the plea that he was inducted as non-occupancy tenant 40 years ago which comes to around 1948. The statement of DW 1 Niaz Deen general power of attorney of Ali Mohammad was recorded on 11.1.1991. He has stated that he was married 20 years ago and Ali Mohammad is his father-in-law. In cross examination, he has deposed that he has stated what has been told to him by Ali Mohammad. He is not aware of the possession. He does not know the possession of the plaintiff on the suit land. Ali Mohammad has not appeared in the witness box. The statement of DW 1 Niaz Deen does not prove creation of non- occupancy tenancy in favour of Ali Mohammad on the suit land. The statement of DW 1 Niaz Deen also does not prove the possession of Ali Mohammad on the suit land. The learned counsel for the appellant has failed to make out a case of mis-reading of Ex. D-1, Ex. D-2 and statement of DW 2 and other oral evidence. The two courts below have rightly appreciated the material on record. There is no perversity in the impugned judgement. The substantial question of law No. 2 is decided against the appellant. 8. No other point was urged. 9. The result of above discussion, the appeal fails and is accordingly dismissed. March 23 , 2010. ( Kuldip Singh ) (Hem) Judge.