HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 165 of 2000 Reserved on:28.2.2011 Decided on: 14.3.2011 Bal Krishan through LRs Prem Kumari and others ……Appellants. Versus Rattanu and others ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Anand Sharma & Mr.Jagan Nath, Advocates. For the respondent: None. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant against the judgment and decree passed by the learned District Judge, Chamba, dated 23.9.1999, vide which the appeal filed by the appellant against the judgment and decree of the Court of learned Senior Sub Judge, Chamba, dismissing the suit of the appellant/plaintiff, was partly allowed and the suit of the appellant was decreed only for part of the land comprised in Khasara No.616, measuring 2-1 bigha. 2. Briefly stated, the facts of the case are the appellant (hereinafter also referred to as the plaintiff) filed a suit for possession of land measuring 14-2 bigha as well as for recovery of Rs.14,972.50P. on account of ______________________________________ Whether the reporters of the local newspapers may be allowed to see the judgment? Yes. - 2 - damages to the fruit trees planted by the plaintiff. It was alleged by the plaintiff that he alongwith proforma defendant No.13 Smt.Krishna is recorded owner of land measuring 25-1 bigha. It was alleged that out of this land, the land measuring 15-12 bigha comprised in Khasra Nos.616, 617, 618 and 620 is entered in the name of the plaintiff as owners in possession, whereas the land measuring 5-6 bigha comprised in Khasra No.619, 620 min and 621 is recorded in the ownership of the plaintiff through defendants No.1 and 2. It was further alleged that the land measuring 4-3 bigha comprised in Khasra No.620min is entered in the name of defendants No.3 to 8 in copy of jamabandi. It was further alleged that the plaintiff alongwith his brother (deceased) Daya Nand was recorded owner in possession of 1/2 share and other 1/2 share belonging to Tek Chand, husband of proforma defendant and was in possession of late Daya Nand and Bal Krishan. The total land was measuring 25-1 bigha. It was further alleged that since the plaintiff and his other co-sharer were residing outside Chamba being in service, Hardeu, ancestors of defendants No.3 to 8 got a wrong entry of tenancy effected in the copy of jamabandi for the year 1958-59. A suit was filed by the plaintiff and his deceased brother Daya Nand for declaration that the plaintiff and his brother Daya Nand were owners in possession of the land measuring 25-1 bigha. The matter ended in a compromise whereby Hardeu and Dinja, who occupied the land, agreed to hand over the possession of half of the land to the - 3 - plaintiff and his brother. The remaining half land was to remain with defendants Hardeu and Dinja as tenants on payment of Galla Batai. The said suit was decreed as per the compromise and the plaintiff and his brother were put in possession of the land in execution proceedings. 3. It was further averred that the plaintiff and his deceased brother moved an application under Section 104 of the H.P. Tenancy and Land Reforms Act for resumption of their share out of the land measuring 12-11 bigha in possession of the ancestors of defendants No.1 to 8. The matter was compromised and the ancestors of the defendants agreed vide compromise deed dated 4.1.1982 to deliver 3-2 bighas of land to the plaintiff and his brothers. On the basis of the compromise, the land was demarcated through Kanungo and the plaintiff was recorded as owner in possession of Khasra Nos.616, 617, 618 and 620 measuring 15-2 bighas of land. It was further alleged that on 10.2.1984, the plaintiff and his brother were granted possession of the land measuring 12-10 bigha comprised in Khasra Nos.616, 617, 618 and 620/1 and the statement of the defendant was recorded and attached with warrant of attachment. It was further alleged that in pursuance of the compromise effected in compensation file decided on 4.1.1982, the plaintiff and his brother were further allotted land measuring 3-2 bigha and a copy of the rapat rojnamcha was also attached. The other owner Daya Nand, brother of the plaintiff, died in the year 1984 and the plaintiff inherited the estate of Daya Nand. It was - 4 - further alleged that on 7/8th September 1985, the defendants alognwith their women folk removed the barbed wire fencing and forcibly entered into the suit land and took possession of Khasra Nos.617, 618, 620/2/1 measuring 4-10 bighas. It was further alleged that the defendants Rattan Chand etc. filed a suit that they have become owners of land by operation of law measuring 9-12 bigha comprised in Khasra No.619, 620 and 621. The said suit was decided against the defendants and appeal was also decided and the judgment had become final qua the parties. In the suit filed by the plaintiff regarding damages and for possession of land measuring 4-10 bigha, it was alleged that the matter is pending in appeal before this Court. It was further alleged that on 25th and 26th July, 1991, the defendants entered into the land of the plaintiff and took forcible possession of Khasra No.620/1 measuring 7-11 bigha, 620/2/1 measuring 3-2 bigha, 616 measuring 2-1 bigha, 617 measuring 1-4 bigha, 618 measuring 0-4 bigha inclusive of the land which they took possession in 1985 and forcibly cut and removed the fruit plants planted by the plaintiff. It was alleged that the plaintiff remained in possession of a part of the land comprised in Khasra No.620 alongwith house, besides a water tank and a small bari. Thus, it was alleged that the plaintiff now remains in possession of Khasra No.620/1/1 measuring 1-9 bigha. Khasra No.620/1/2 measuring 0-1 bigha, khasra No.620/1/3 measuring 0-0-4 bigha as per the report of the Kanungo. The plaintiff after taking possession of the suit property planted an orchard - 5 - over the suit land by raising a number of fruit trees and defendants forcibly cut and removed and damaged the fruit trees causing loss to the extent of Rs.14972.50P., as per the report of the Horticulture Department to which the plaintiff is also entitled apart from the decree for possession of land measuring 14-2 bighas. 4. In written statement filed by defendants No.1 and 2, they pleaded that the deceased Hardeu and Dinja were recorded tenants in possession of the suit land and defendants No.1 to 12 being their legal heirs are in possession of the suit land. They pleaded that defendants No.1 to 12 are owners in possession of the suit land and the plaintiff has no concern with the land. They also pleaded that the plaintiff being an employee of Revenue Department got the entries wrongly inserted in his favour which are illegal. The defendants also denied that deceased Hardeu and Dinja ever entered into any compromise or any possession was delivered to the plaintiff in pursuance of the compromise. They pleaded that Hardeu and Dinga were in continuous possession of the suit land and thereafter defendants No.1 to 12 are in possession of the suit land. They denied the factum of compromise or the plaintiff was put in possession thereof. They admitted that an appeal is pending in this Court and there was no cause of action to file the said suit, which was dismissed by the learned Senior Sub Judge, Chamba on 2.1.1989 and the appeal of the plaintiff was also dismissed on 27.6.1990. - 6 - 5. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the suit is barred by the principle of resjudicata? OPD 5. Whether the plaintiff is entitled to the recovery of possession of the suit land as alleged? OPP 6. Whether the plaintiff is entitled to the damages from the defendants and if so, to what extent? OPP 7. Relief. 6. Parties led their evidence and the learned trial Court vide its impugned judgment decided issues No.2, 3, 4, 5 and 6 as against the plaintiff and in favour of the defendants and consequently the suit of the plaintiff for possession as well as for recovery of the damages was dismissed. On appeal by the plaintiff, the appeal was partly accepted and the plaintiff was held entitled to a decree for possession of the land measuring 2-1 bigha comprised in Khasra No.616 and the appeal in regard to remaining land was dismissed. 7. I have heard the learned counsel for the appellant and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellant were that the appellant had fully proved his - 7 - case that compromise was effected and he was held entitled to the land, the possession of which was taken by the defendants and as such he was entitled to the relief of possession as well as for damages, which have been wrongly denied by the learned trial Court and the findings to the contrary of both the courts below are liable to be reversed. 9. On appraisal of the record of the case, it is clear that the plaintiff had filed the suit for possession of land measuring 14-2 bigha comprised in khasra numbers and their areas are as under: Sl.No. Khasra No. Area in bighas 1. 620/1/4 7-11 2. 620/2/1 3-2 3. 616 2-1 4. 617 1-4 5. 618 0-4 10. A perusal of the judgment Ext.D-1 of the court of learned Senior Sub Judge, Chamba, dated 2.1.1989, shows that the suit was filed in regard to Khasra Numbers 617, 618 and 620/2/1 measuring 4 bigha 10 biswa for possession against the defendants. There are specific findings recorded under issue No.1 in that suit that the plaintiff was not proved to be owner of these three khasra numbers. The learned trial court in its judgment dated 16.1.1999 had specifically come to this conclusion that these three - 8 - khasra numbers were not proved to have been delivered to the plaintiff in pursuance of compromise entered into in between the parties. There are also specific findings that the appeal against that judgment has been dismissed by the court of learned District Judge as well as by the High Court vide Exts.D-2 and D-3 and these findings, in so far as the parties to the suit are concerned, had become final. Once the plaintiff had been held to be not in possession and he was not held entitled to the possession, the subsequent suit was not competent and in so far as the findings of the learned trial Court in regard to these khasra numbers are concerned, out of five khasra numbers, as detailed above, the plaintiff was rightly held not entitled to a decree for possession. 11. Now, the question remains that out 5 disputed khasra numbers in regard to Khasra No.620/1/4 measuring 7- 11 bigha and Khasra No.616 measuring 2-1 bigha. In regard to the land comprised in Khasra No.620/1/4, the learned trial Court had specifically held that the plaintiff has not identified this part of the land by producing Tatimas of the land to prove that it was part of the entire khasra No.620 measuring 21-3 bihga and of which particular portion of the land. There are specific findings of the learned First Appellate Court in regard to Khasra No.620/1/4 that the plaintiff had failed to prove by positive evidence if the same was in his ownership and possession. The revenue record produced by the plaintiff shows as khasra number 620min, but there was nothing to hold that it relates to - 9 - khasra number 620/1/4. The learned First Appellate court had also come to the conclusion that no Tatima of the land had been filed and as such it was not possible to ascertain the identity of this land and deliver possession of the same to the appellant. Thus, both the courts below have referred to the evidence and had come to the conclusion that in regard to the land comprised in Khasra No.620/1/4, measuring 7-11 bigha, it was not proved to have been in possession of the plaintiff and the identity of the land was also not established and therefore, the plaintiff was rightly held not entitled to the decree for possession qua this khasra number. 12. The dispute now, therefore, remains only in regard to khasra No.616 measuring 2-1 bigha out of the five khasra numbers of the suit land and for this part of the land, the relief of possession was declined by the learned trial Court. There are no findings of the learned trial Court that Khasra No.616 was also part of the suit land in the suit filed by the plaintiff earlier, which was dismissed and the findings have been upheld by this Court. Those findings were only in regard to Khasra No.617, 618 and 620/2/1, which have been affirmed, as detailed above. However, the learned trial court drew a conclusion that Khasra No.616 was not proved to be delivered to the plaintiff in pursuance of the compromise entered in between the parties and reference was made to Civil Suit NO.57/1986/87. However, a perusal of the judgment in that case, copy of which is Ext.D-1, shows that this did not - 10 - appear to be pertaining to Khasra No.616 also. Therefore, no benefit can be taken out of the judgment passed vide Ext.D-1 by the court of the learned Senior Sub Judge, Chamba. The learned First Appellate Court had held that the appellant was entitled to a decree for possession of this part of the suit land measuring 2-1 bigha. A reference was made to the copy of the jamabandi Ext.PF for the year 1987- 88 showing the ownership and possession of the plaintiff Bal Krishan as co-sharer. It was held that presumption of truth is attached to the entry in the Jamabandi which has not been rebutted by the defendants and accordingly relying upon this entry and other evidence, the learned First Appellate Court had come to the conclusion that the plaintiff was entitled to the possession of this part of the land once he has alleged that the possession was forcibly taken by the defendants. Those findings are based upon correct appreciation of evidence and law and the conclusions drawn therein are apparent from the record and as such a reference has already been made to the evidence and there is no necessity of reappraisal of the whole evidence in so far as other three khasra numbers are concerned, namely, Kh.Nos.617, 618 and 620/2/1 and as such the findings of the learned First Appellate Court decreeing the suit of the plaintiff for possession in regard to Khasra No.616 are liable to be affirmed which are affirmed accordingly. - 11 - 12. In view of above discussions, I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly. However, the parties are left to bear their own costs. March 14, 2011. (V.K. Ahuja), (tilak) Judge.