IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.442 of 1998 with CMP No.135 of 2009 Judgment reserved on : 18.11.2009 Date of decision : 28.12.2009 ____________________________________________________ Baldev Singh and Anr. …Appellants. Versus Jagdish Raj …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the appellants : Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the Respondent : Mr. Y. Paul, Advocate with Mr. Dinesh Kumar, Advocate. Kuldip Singh, Judge The defendants are in appeal against judgment, decree dated 7.11.1997 passed by learned District Judge, Solan in Civil Appeal No.43-K/13 of 1994, reversing judgment, decree dated 26.4.1994 passed by learned Sub Judge Ist Class, Kandaghat in Case No.52/1 of 1991. 2. The facts in brief as per the case of the respondent are that respondent had filed a suit for permanent prohibitory injunction against the appellant regarding land comprised in khata/khatauni No.111 min/146, khasra No. 768 min, measuring 3-0 bighas, situate in village Dharyan, Pargana Chail, Tehsil Kandaghat, District Solan on _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? yes 2 the grounds that he is in possession of the suit land and appellants who are residents of village Kalhog are owners of adjoining land, rather influential persons, appellant No.1 being up-pardhan of village Gram Panchayat and taking undue advantage of his position as up-pardhan are interfering unnecessarily and without any cause in the land of the respondents. The appellants have no right title or interest on the suit land. The respondents had also filed an application under Section 145 Cr.P.C. before Sub Divisional Magistrate, Kandaghat and the proceedings are pending. 3. The appellants contested the suit by filing written statement. It is the case of the appellants that respondent has no locus standi to file the suit nor he has any cause of action against the appellants. The suit is not maintainable. The revenue record showing respondent in possession of the suit land is wrong, illegal and against facts. It has been prepared in connivance with the revenue officials and is not binding on the appellants. The suit land alongwith other part of the basic khasra No.768 min is individually owned and possessed by the khewatdars of village Dharyan and the same does fall within the ambit of shamlat deh, hence, it is required to be reverted back to khewatdars. The suit land is situated on the bank of river Ashani Khud and is subject to alluvion and dilluvion and is a part of estate of khewatdars. The land has been wrongly vested in the Gram Panchayat and then in the State of H.P. There is a special custom prevalent in the ilaqua in respect of land subject to alluvion and dilluvion, according to which if the land is washed away by water of river Ashani, the 3 owners have right to reclaim the same which the owners have been doing since long and are bound by the custom. The land after reclaiming remains with the owner who reclaims it in the capacity of owner. Sant Ram is not the khewatdar of village Dharyan as such he has no right to reclaim the land. The suit is bad for non-joinder of necessary parties and suffers from better particulars. On merits, the defence of the appellants is that respondent is not in possession of the suit land nor he has reclaimed the same. The basic khasra number of the land is 768, measuring 27-12 bighas and from this khasra number river Ashani flows. The remaining part of this khasra number had been reclaimed by the khewatdars who cultivated the same. The reclaimed part of the said khasra number forms a part of estate of khewatdars and the same has been coming into the possession of the appellants and other khewatdars of village Dharyan. The appellants have denied interference in the alleged possession of respondent on the suit land. The suit has been filed in order to harass the appellants. The suit land does not fall within the definition of shamlat deh. The appellants have also repeated their defence on merits regarding vesting of the suit land and custom which they have taken in the preliminary objections. 4. In replication the respondent had reiterated his case and denied the stand of the appellants. On the pleadings of the parties, the following issues were framed by the learned trial court:- 1. Whether suit land is possessed by the plaintiff as alleged? OPP 2. Whether the revenue entries in favour of plaintiff are wrong and illegal? OPD 4 3. Whether the suit land is subject to alluvion and dilluvion as alleged. If so, its effect? OPD 4. Whether the plaintiff has a cause of action? OPP 5. Whether the plaintiff has no locus standi to sue? OPD. 6. Whether the suit is not maintainable in its present form?OPD 7. Whether the suit land is owned and possessed by Khewatdars of village Dharyan as alleged in preliminary objection No.4 of the written statement? OPD 8. Whether there is a special custom for re-claiming the land as alleged? OPD 9. Whether the suit is bad for non-joinder of necessary parties? OPD 10. Whether the suit is bad for want of better particulars? OPD 11. Whether the defendants are entitled to special costs u/s.35-A CPC . If so, their quantum? OPD. 12. Relief The issues No.1, 4 to 6,9 and 11 were answered in negative, issues No.2,3,7,8 and 10 in affirmative and the suit was dismissed by learned trial Court on 26.4.1994. The respondent had filed appeal which was allowed by learned district Judge on 7.11.1997 and set aside judgment, decree dated 26.4.1994. The appeal has been admitted on the following substantial questions of law:- 1. Whether the findings of the Ld. District Judge below are vitiated on account of misreading and mis-appreciation of the pleadings of parties and oral as well as documentary evidence on record? 2. Whether the presumption of truth attached to the entries in revenue record have been amply rebutted by 5 the reliable and cogent evidence produced by the appellants? 3. Whether in view of the entries in the khasra girdawari, in exhibit PW-2/A, for the period from Kharif-1984 to Kharif-1986, the entries in Jamabandi exhibit P-1 for the year 1983-84 is contradicted? 4. Whether on the basis of exhibit DX, custom of use of the suit land by the Khewatdar of Mauja Dharyan, dis- entitled the plaintiff to possess land in suit he being not a khewatdar in the revenue estate? 5. Whether exhibit PA orders passed by the Ld. Collector, Kandaghat is inadmissible in the evidence and the same is collusive because estate right holders of Mauja Dharyan have the right to use and possess the suit land and no encroachment proceedings could be initiated? 6. Whether the well reasoned judgment passed by the Ld. trial court has been upset by the Ld. District Judge, below without recording any specific and cogent reasons? 7. Whether exhibit PW-1/A could not be received in evidence and no reliance can be placed thereon in the absence of legal proof? 8. Whether the identity of suit land has not been established? 5. In the appeal the appellants have filed CMP No.135 of 2009 under Order 41 Rule 27 read with Section 151 CPC for permitting the appellants to produce in evidence Missal Haquiat for the year 1993 up-mohal Dochi regarding khasra Nos. 574 and 575. The respondent has filed reply to the application for additional evidence and opposed the application. 6 6. I have heard 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 erred in reversing the judgment, decree dated 26.4.1994 of the trial Court. The learned District Judge has misread and mis-appreciated the pleadings and evidence on record. The presumption attached to the entries in the revenue record has been rebutted by the evidence led by the appellants. The respondent is not entitled to possession of the suit land. The custom of mauja Dharyan disentitles the respondent to possess the suit land as he is not khewatdar in the revenue estate. Ex.PA order of the Collector is inadmissible; similarly Ex.PW-1/A has been wrongly read in evidence. The identity of the suit land has not been established. The learned counsel for the appellants has submitted that appellants may be allowed to lead additional evidence. 7. On the contrary on behalf of the respondent, it has been contended that the learned District Judge has rightly appreciated the material on record. The land has been identified. There is no misconstruction and misinterpretation of evidence by learned District Judge. The impugned judgment, decree are based upon the evidence on record. It has been contended that no substantial question of law is involved in the appeal. The application for additional evidence has been opposed and the prayer has been made for dismissal of the appeal. 8. The application under Order 41 Rule 27 read with Section 151 CPC is taken first. It has been submitted that suit was filed in the year 1991 but thereafter settlement operation has taken place. The 7 missal haquiat for the year 1993, up-mohal Dochi shows that khasra No.768 min has been converted into khasra Nos. 574 and 575. In the column of ownership the State has been recorded owner of the area and in the column of possession estate right holders have been shown in occupation. In missal haquiat old khasra No.768 min has been converted into new khasra Nos. 574 and 575. The learned counsel for the appellants has submitted that missal haquiat 1993, a copy of which has been placed on record alongwith application may be allowed to be taken on record as additional evidence. This has been opposed on behalf of the respondent. 9. The suit land is three bighas. The suit has been filed on the basis of jamabandi for the year 1983-84 Ex.P-1. In jamabandi Ex.P-1 khasra No.768 min (iii) measuring three bighas has been recorded in the ownership of State and in possession of Sant Ram. The appellants in the written statement have pleaded that basic khasra No.768 is measuring 27-12 bighas. In missal haquiat filed with the application for additional evidence old khasra No.768 min (ii) has been converted to khasra No.574 and khasra No.575. The suit land as per jamabandi 1983-84 comprised in khasra No.768 min (iii) but its equivalent new number has not been shown in missal haquiat 1993. In these circumstances, missal haquiat 1993 which appellants intend to bring on record by way of additional evidence will not assist this Court to adjudicate the controversy between the parties. The application for additional evidence is thus rejected. 8 10. The substantial questions of law No.2 and 3 are interconnected, therefore these substantial questions of law are taken up together for disposal. Ex.PW-2/A is the copy of khasra girdawari for kharif 1984 to kharif 1986. In Ex.PW-2/A khasra No.768 min (iii) has been shown measuring three bighas in the ownership of State and in possession of Sant Ram. In jamabandi for the year 1983-84 Ex.P- 1, khasra No.768 min (iii) has been shown in the ownership of State and in possession of Sant Ram. Thus, there is no conflict in khasra girdawari Ex.PW-2/A and jamabandi Ex.P-1 showing the suit land owned by State and possessed by Sant Ram. The presumption attached to jamabandi for the year 1983-84 has not been rebutted, rather khasra girdawari Ex.PW-2/A and jamabandi Ex.P-1 have established the ownership of State and possession of Sant Ram on khasra No.768 min (iii). The substantial questions of law No.2 and 3 are decided against the appellants. 11. Ex.PW-1/A is the copy of registered Power of Attorney of Sant Ram in favour of Jagdish Raj his nephew. PW-1 Jagdish Raj had tendered Ex.PW-1/A in evidence. The tendering of Ex.PW-1/A in evidence was not objected nor PW-1 was cross-examined regarding the execution of Ex.PW-1/A. In these circumstances, it can be safely inferred that appellants had no objection with respect to Power of Attorney Ex.PW-1/A. In the grounds of appeal in the lower Appellate Court execution, admissibility of Ex.PW-1/A in the evidence was not specifically assailed. It is too late for the appellants to question Power of Attorney Ex.PW-1/A in the second appeal, hence substantial question of law No.7 is decided against the appellants. 9 12. The substantial questions of law No.1,4,5,6 and 8 can be conveniently considered collectively and therefore, these substantial questions of law are taken up collectively for disposal. The question regarding the maintainability of the suit by the person who actually filed the suit requires consideration. The suit was filed in the name of Jagdish Raj as General Power of Attorney holder of Sant Ram and not in the name of Sant Ram through Jagdish Raj General Power of Attorney. There is no specific objection in the written statement that suit has been filed in the name of wrong plaintiff. In the plaint, it has been alleged that the plaintiff is in possession of the suit land as per jamabandi for the year 1983-84. PW-1 Jagdish Raj has stated that Sant Ram plaintiff is his uncle ( Chacha). The perusal of plaint and statement of PW-1 Jagdish Raj indicate that suit was filed by Sant Ram. It is only while describing the plaintiff in the memo of parties some error has been committed. The name of Jagdish Raj has been typed first instead of Sant Ram. 13. Jagdish Raj had filed appeal against the judgment, decree dated 26.4.1994 of the trial Court. Sant Ram died on 25.8.1995, an application under Order 22 Rule 3 CPC was filed in the lower Appellate Court for brining on record Jagdish Raj as legal representative of Sant Ram. The lower Appellate Court considered the application under Order 22 Rule 3 CPC for bringing on record Jagdish Raj as legal representative of Sant Ram on 21.3.1996 and held that Jagdish Raj be recorded as legal representative of Sant Ram deceased. This indicates that both the parties were considering right from the very beginning that the suit was filed by Sant Ram even 10 though in the memo of parties of the plaint, the plaintiff was described as Jagdish Raj General Power of Attorney of Sant Ram. In view of stand taken by the parties in the trial Court and in the lower Appellate Court, it is clear that both the parties understood that the suit was filed by Sant Ram through General Power of Attorney. The irregularity, if any, in the description of plaintiff in the memo of parties of the plaintiff has been rectified after the death of Sant Ram when Jagdish Raj was brought on record in the lower Appellate Court as legal representative of Sant Ram and he was made appellant. In these circumstances, it can be safely held that the suit was filed by Sant Ram. 14. Ex.P-1 is the jamabandi for the year 1983-84, in which Sant Ram has been shown in possession of land comprised in khasra No.768 min (iii) measuring 3 bighas. The case of the appellants is that Sant Ram was not khewatdar in village Dharyan, therefore, he was not entitled to occupy the suit land. It is also the case of the appellants that according to Wazibul-Arz the land subject to alluvion and dilluvion could be reclaimed by the previous owner or a person in occupation and was not to be treated to be a shamlat land. Sant Ram was not khewatdar and therefore, he could not have reclaimed the land nor he could possess the land. The entries in favour of Sant Ram are fictitious. According to Wazibul-Arz the land washed and damaged by the river while becoming gair-mumkin would not become shamlat deh. But on reclaimation becomes property of the same owner or possessor who was earlier recorded in possession. 15. The suit is simple for injunction against the appellants regarding the suit land. DW-1 Baldev claims possession on whole of 11 the khasra No.768. He has admitted that Surat Ram was his brother. DW-2 Smt. Phuloo widow of Surat Ram has stated that her husband had never given land to Jagdish Raj. She has stated that her husband had purchased land in the village Dhrayan 32 years ago. PW-1 Jagdish Raj has stated that Sant Ram was in possession of the suit land. In cross-examination he has stated that possession was given to him by his uncle Surat Ram. In Ex.PW-2/A khasra girdawari recorded from kharif 1984 to kharif 1986 Sant Ram had been recorded in possession of land comprised in khasra No.768 min(iii) measuring 3 bighas and in jamabandi for the year 1983-84 Ex.P-1 Sant Ram again has been recorded in possession of khasra No.768 min(iii). The presumption of truth attached to jamabandi 1983-84 has not been rebutted, rather it has been further supported by the khasra girdwari and entries recorded in Ex.PW-2/A. 16. Ex.PA is the copy of order dated 30.8.1986. In fact vide order dated 24.5.1986, the Assistant Collector Ist Grade, Kandaghat had ordered ejectment of Sant Ram from land comprised in khasra No.893/767, measuring 1-7 bighas, situated in village Dharyan. He was also ordered to be evicted from land comprised in khasra No.768/1, measuring 1-12 bighas. Sant Ram had filed two appeals and in both appeals the Collector, Kandaghat vide Ex.PA had held that the land in question is Burdgi-Bramdgi and such lands cannot be used by the Government for any permanent benefit nor by any of the individual nor it can be allotted to any landless or eligible person. The Collector found possession of Sant Ram on the land temporarily on the 12 mercy of spading river water. The fact remains that appellant was not evicted from the land which was covered by Ex.PA. 17. It is also the case of the appellants that earlier possession of Sant Ram was on land measuring 1-12 bighas, therefore, jamabandi Ex.P-1 is not correct in which possession of respondent has been recorded on 3 bighas of land. It is the case of the appellants that original khasra No.768 was a big khasra number measuring 27-12 bighas and it has different min numbers. In jamabandi Ex.P-1 khasra No.768 min (iii) has been shown measuring 3 bighas. The appellants themselves have filed copy of missal haquiat 1993 alongwith their application under Order 41 Rule 27 read with 151 CPC wherein khasra No.768 min(ii) has been shown equivalent to new khasra Nos.574, 575. The appellants have not made clear whether khasra No.768/1 mentioned in Ex.PA is the same khasra number which has been later on given khasra No.768 min(iii), apparently these two khasra numbers appear to be distinct and separate khasra numbers. Therefore, for this reason, presumption of truth attached to jamabandi Ex.P-1 has not been rebutted. 18. The learned counsel for the appellants have questioned the vestment of the land initially in the Panchayat then in the Government. The question of vestment of the shamlat deh land has been considered in Dalip Singh and others vs. State of H.P. and others, 1992(1) Simla Law Cases, 320 and according to this judgment civil court cannot go into question regarding vestment of the shamlat land. The possession of Sant Ram was found on the suit land. He had every right to protect his possession. The learned 13 District Judge vide impugned judgment, decree has only protected the possession of Sant Ram on the suit land. Now, Sant Ram has died and therefore, his legal representative is also entitled to same protection till he is dispossessed in accordance with law. The suit land has been properly identified by way of jamabandi Ex.P-1. The learned District Judge has properly appreciated the pleadings, oral and documentary evidence on record. The learned counsel for the appellants has failed to point out any perversity in the impugned judgment, decree. It has not been shown that impugned judgment, decree is based upon inadmissible evidence or material evidence which demolishes the case of the respondent has been ignored. The substantial questions of law No.1, 4, 5, 6 and 8 are held against the appellants and in favour of the respondent. 19. No other point was urged. 20. The result of the above discussion, appeal fails and is accordingly dismissed. December 28, 2009 (Kuldip Singh), (sks/gr) Judge.