IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.169 of 2000 Date of decision: 30.3.2010 Smt. Krishna and another ….. Appellants. Vs. Parmeshwari Dass and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Naresh K. Sharma, Advocate vice Mr. K.D. Sood, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate, for respondents No.1 and 2. None for other respondents. Kuldip Singh, Judge(Oral) . The defendants No.1 and 2 are in appeal against judgment; decree dated 1.1.2000 passed by learned Addl. District Judge, (1) Kangra at Dharamshala in Civil Appeal No.54-D/97, dismissing the appeal and decreeing the suit of respondent No.1 for vacant possession of the disputed shed, standing over the suit land comprised in khasra No.859. 2. The facts in brief are that respondent No.1 had filed a suit for declaration with consequential relief of permanent and mandatory injunction against appellants, respondent No.3 and one Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Hari Mohan predecessor-in-interest of respondents No.4 to 6. The respondent No.2 was proforma defendant No.6 in the suit and one Purna Devi was also impleaded as defendant in the suit. The details of the suit land have been given in the plaint. In view of ultimate order which I intend to pass, it is not necessary to give further details of the plaint. 3. The appellants had contested the suit by filing written statement and they have taken the objections that the respondent No.1 has no cause of action to file the suit and the suit is not maintainable in the present form. The objections of locus standi, non-joinder of necessary parties, estoppel, valuation, limitation and jurisdiction of the Court to try the suit were also taken. It was pleaded that shed is still in existence on the suit land and is in possession of the appellants. On merits, it was contended that Rattan Chand predecessor-in-interest of appellants had constructed a ‘Tapri’ on the shamlat land comprised in khasra No.941/734 min, measuring 2 marlas during 1954-55 and the same was used as a store by him and after his death, the appellants are using the same as godown and are paying land revenue and municipal taxes. The possession of the appellants on the ‘Tapri’ is open, hostile and to the knowledge of the respondent No.1 and they have become owners of the same by afflux of time. 4. The suit was decreed partly on 6.5.1997 by learned Senior Sub Judge, Kangra at Dharamshala. A decree for declaration and permanent injunction to the effect that the respondent No.1 and respondent No.2 are in possession of the suit land, appellants etc. …3… were restraining from interfering in possession of the respondent No.1 and respondent No.2 on the suit land in any manner. 5. The judgment, decree dated 6.5.1997 was challenged by way of appeal, learned Addl. District Judge dismissed the appeal on 1.1.2000 but decreed the suit of the respondent No.1 for vacant possession of the disputed shed standing over the suit land i.e. khasra No.859. 6. The appeal has been admitted on the following substantial questions of law:- 1. Whether the decree of the trial court for declaration and permanent injunction could be modified to one for possession without any appeal or cross objections on the part of the plaintiff/respondent and once the appellants were found to be in possession of the property? 2. Whether on the plea of the plaintiff that with the fall of structure, the tenancy rights of the defendants came to be extinguished and the plaintiff was entitled for declaration, injunction and possession is sustainable in view of the f act that the property is situated in the municipal limits of Dharamshala where the provisions of the H.P. Urban Rent Control Act applies? 3. Whether in the facts and circumstances of the case, a case of leading additional evidence was made out and the District Judge has acted with illegality in the exercise of jurisdiction in rejecting the said application? 4. Whether the court below has misread and misconstrued the oral and documentary evidence and has drawn wrong inferences in holding that the defendants are owners of the property and the plaintiffs had not established the title by adverse possession? 7. I have heard learned counsel for the parties and have also gone through the record. The substantial question of law No.3 is taken up first. In the Lower Appellate Court the appellants had filed an application under Order 41 Rule 27 CPC for proving writing …4… dated 16.11.1953 allegedly executed by Chuni Lal predecessor-in- interest of respondents No.1 and 2. This application was contested by respondent No.1. The learned Addl. District Judge decided the appeal on 1.1.2000. Thereafter the learned Addl. District Judge vide another order dated 1.1.2000 dismissed the application under Order 41 Rule 27 CPC. The order dated 1.1.2000 passed by learned Addl. District Judge on application under Order 41 Rule 27 CPC is reproduced herein below:- “The appeal is dismissed vide my separate judgment of even date placed on the file. In view of the disposal of the main appeal, the application under Order 41 Rule 27 (1) C.P.C. also becomes infructuous and the same is dismissed. Even otherwise also the same is not tenable, especially when it is not established that despite the exercise of due diligence, such evidence was not within the knowledge of the defendant or could not after the exercise of due diligence be produced by him at the time when the decree was passed. Also the application does not appear to be bonafide, the same is therefore, dismissed. The file after due completion be consigned to record room”. 8. The perusal of order dated 1.1.2000 on the application under Order 41 Rule 27 CPC indicates that learned Addl. District Judge first decided the main appeal and thereafter by separate order decided the application under Order 41 Rule 27 CPC. There was nothing before learned Addl. District Judge for decision when he had already decided the main appeal itself. The learned Addl. District Judge has committed jurisdictional error in deciding the application under Order 41 Rule 27 CPC after the decision of the main appeal. The appellants had filed the application under Order 41 Rule 27 CPC, therefore, this application should have been decided at least …5… alongwith the main appeal, if not prior to the decision in the main appeal. On this ground alone the impugned judgment, decree are not sustainable. The substantial question of law No.3 is decided in favour of appellants. In view of decision of substantial question of law No.3, it is not necessary to decide the other substantial questions of law as I intend to remand the appeal to the learned lower Appellate Court. 9. In view of above discussion, the appeal is allowed, judgment decree dated 1.1.2000 and order dated 1.1.2000 on application under Order 41 Rule 27 CPC passed by learned Addl. District Judge, (1) Kangra at Dharamshala in Civil Appeal No.54-D/97 are set aside and the case is remanded to learned Addl. District Judge (1), Kangra at Dharamshala to decide application under Order 41 Rule 27 CPC and appeal afresh in accordance with law after giving opportunity to the parties. 10. The parties through counsel are directed to appear before learned Addl. District Judge (1), Kangra at Dharamshala on 21.4.2010. The record of the case be sent back to the learned Addl. District Judge (1), Kangra at Dharamshala, so as to reach before the date fixed. The appeal in the learned lower Appellate Court was filed on 6.8.1997; therefore, it is an old matter. The learned Addl. District Judge is directed to decide the appeal expeditiously and preferably within six months w.e.f. 21.4.2010. No costs. March 30, 2010. ( Kuldip Singh ) (sks) Judge. …6…