IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 555 of 2000 Date of decision: 21.10.2010 Sarwan Singh and others ... Appellants Versus Om Parkash and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. K.D. Sood, Advocate. For the respondents: Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. V.K. Ahuja, J. (Oral) : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellants/plaintiffs against the judgment and decree of the Court of learned District Judge, Hamirpur, dated 8.8.2000, vide which he affirmed the judgment and decree passed by the Court of learned Sub Judge Ist Class, Hamirpur, dated 30.3.1993, dismissing the suit of the plaintiffs for permanent prohibitory injunction. 2. Briefly stated, the facts of the case are that the appellants hereinafter also referred to as the plaintiffs filed a suit for permanent prohibitory injunction as against the respondents, hereinafter also referred to as the defendants. It was alleged by the plaintiffs that they alongwith tikadarans of tika Rail of Mouza Balduhak have bartandari 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 rights such as grazing cattle, Sandh Bihag, paths, burying dead bodies, taking wood, stones, sand and earth etc. over the suit land. The suit land was recorded in the ownership and possession of Tika Maheshwar Chand and that in the remarks column of jamabandi mutation of sale in favour of the defendants have been shown on a portion of the suit land. It was alleged that the plaintiffs have got bartandari rights over the land measuring 137 Kanals 11 Marlas as detailed in the plaint and since the defendants are interfering in the rights of the plaintiffs over the suit land, hence, the suit filed by them. 3. Defendants contested the suit and pleaded that the land in dispute is described as Gair Mumkin Khad and the bartandarans could only exercise bartandari rights as per entries in the ‘wazib- ul-arz’ in respect of the land which was recorded as banjar land. Thus, the defendants stated that they have rightly purchased the land from Tika Maheshwar Chand and as such, they are entitled to use the land for any purpose. Hence, the suit of the plaintiff was liable to be dismissed. 4. On the pleadings of the parties issues were framed by the learned trial Court. The main issues were Issues No. 1 and 2, which are, whether the plaintiffs have bartandari rights over the suit land as alleged and whether the plaintiffs are entitled to the relief of permanent injunction. Issues No. 3 to 5 are not being reproduced since these were not pressed during the course of arguments. 5. I have heard the learned counsel for the parties and have gone through the record of the case. 6. The submissions made by the learned counsel for the appellants were that the plaintiffs had bartandari rights over the land 3 in dispute and the learned trial Court had wrongly held that the plaintiffs were not entitled to these rights over the suit land which was entered as Gair Mumkin Khad. Thus, it was submitted that the findings recorded to the contrary by both the Courts below are liable to be reversed. It was also submitted that the application filed by the plaintiffs before the learned District Judge under Order 41 Rule 27 C.P.C. was wrongly rejected and the same deserves to be allowed and the case deserves to be remanded to learned trial Court. It was also submitted that the learned trial Court has wrongly observed that Raja Nadaun was a necessary party and, therefore, the suit could not have been dismissed on that ground, but the plaintiff were liable to be given an opportunity to implead the necessary party. 7. On the other hand, learned counsel for the respondents had supported the impugned judgment for the reasons recorded therein. 8. On appraisal of the pleadings of the parties, it is clear that the main question which arises for consideration is as to whether the plaintiffs have bartandari rights over the suit land or not. The main question which arises for consideration is as to whether these bartandari rights could be exercised by the plaintiffs over the land. It was also recorded as Gair Mumkin Khad as per the copy of jamabandi Ext. P-1 for the year 1983-84. This copy was attached when the plaint was filed by the plaintiff and it is clear that that was the copy of jamabandi on which the plaintiffs had based their claim. This clearly describes the land as Gair Mumkin Khad and there is also a reference to the land sold to defendants. The copy of ‘wazib- ul-arz’ describes the rights of proprietors, who are having 4 bartandari rights, is Ext. P-5 placed on record. A perusal of the same shows that even rights can be exercised over the land, which is recorded as Banjar Kadim and it does not lead to the inference that these can also be exercised over the land which is recorded as Khad, on which Raja is the owner of the land. The land is entered in the ownership of Raja also and as per the remarks column, it is subject to bartandari rights as per ‘wazib-ul-arz’. It is clear that in the copy of jamabandi for the year 1983 (Ext. P-1), the land was entered as Gair Mumkin Khad and as such, the plaintiffs and other proprietors of the village have no right of bartandari over this land. Both the Courts below have discussed the oral as well as documentary evidence and had come to this conclusion that these rights could not be exercised over the land, which is entered as Khad. Therefore, the learned trial Court had come to a right conclusion that the plaintiffs had no right of bartandari over the land in question. 9. Coming to the question as to whether the application for leading additional evidence was wrongly rejected by the learned First Appellate Court. The plaintiffs had sought to tender in evidence copies of jamabandis and no case was made for allowing the application under Order 41 Rule 27 CPC and, therefore, the application filed before the learned Appellate Court to tender in evidence copies of jamabandis cannot be said to have been wrongly rejected. No case was made out for allowing the application before the learned Appellate Court and hence the application was rightly dismissed. 10. Coming to the point that the suit could not have been dismissed by the learned trial Court due to non-impleading of Raja Nadaun as party. There was no such issue in regard to necessary party 5 nor any evidence was led that Raja was a necessary party and the suit is liable to be dismissed. The only observation made by the learned trial Court is that it is afraid that the plaintiffs can claim bartandari rights in the present suit without impleading Raja Nadaun as party. The suit was for permanent injunction and not for declaration and, therefore, Raja Nadaun was not a necessary party nor any issue was claimed nor it was decided by the learned trial Court and this reference made cannot lead to an inference that the suit was dismissed by the learned trial Court without impleading Raja Nadaun. 11. In view of the above discussion, it follows that all the findings recorded by the learned trial Court are based upon correct appreciation of facts, evidence and law and as the substantial questions of law on which the appeal was admitted have been duly considered and the findings of fact recorded by the learned trial Court and affirmed by the learned District Judge, do not call for reappraisal of the evidence by this Court. 12. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants and the same is accordingly dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), October 21, 2010 Judge (BSS) 6