IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 45 of 1996 Judgment reserved on : 1.1.2008 Date of Decision : February , 2008 Kuldip Singh and another …Appellants. Versus: Raj Rani and others …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellants: Mr. Sanjeev Kuthiala, Advocate. For respondent No.1 & LRs 2(a) to 2(e) . : Mr. N. K. Thakur, Advocate. For respondent No.7: Mr. Ramakant Sharma, Advocate. Sanjay Karol, Judge. The respondents and their predecessors-in-interest (plaintiffs) filed a suit No. 489/85 RBT No. 773/89 for declaration and permanent injunction against the present appellants (defendants) on 12th December, 1985, which was decreed by the Sub Judge Ist Class, Court No. II, Amb, District Una, H.P. in terms of his judgment and decree dated 25.6.1991. The same was assailed by the appellants herein and vide judgment dated 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 8.12.1995, the District Judge, Una dismissed the appeal filed by the present appellants. Therefore, the present appeal arises against the concurrent findings of facts recorded by the Courts below against the present appellants and in favour of the respondents herein. Appellants Kuldip Singh and Sushil Kumar, sons of appellant Pirthi Chand got themselves recorded as tenants of the plaintiffs in the suit with respect to the land denoted by khasra No. 1108 min measuring 5 marlas situate in village Mubarikpur, Tehsil Amb, District Una, H. P. On the strength of the same, they started interfering with the plaintiffs’ possession and consequently the suit for declaration and permanent injunction was filed by the plaintiffs against them. The trial Court framed the following issues:- “1) Whether the plaintiffs are estopped by their acts and conduct from filing the present suit? …….OPD 2) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? ….. OPD 3) Whether the plaintiffs have no cause of action? ..OPD 4) Whether the plaintiffs and defendant No.3 are owners in possession of the land measuring 5 marlas comprised in Khasra No. 1108 min as alleged? …OPP 5) Relief” On the basis of the evidence led by the parties vide judgment and decree dated 25.6.1991, the trial Court decreed the suit in favour of the plaintiffs holding that defendants No. 1 3 & 2 were not the tenants of the plaintiffs and restrained them from interfering with the possession. In an appeal, the first Appellate Court has concurred with the findings of facts recorded by the trial Court while dismissing the appeal in terms of its judgment and decree dated 8.12.1995. The present appeal was admitted on the following substantial questions of law:- “1)Whether on the proper construction of the pleadings of the parties and provisions of the H.P. Tenancy and Land Reforms Act, the jurisdiction of the civil Court to adjudicate the suit was precluded? 2) Whether the jurisdiction of the civil Court was ousted on the face of a valid order passed by a competent authority in the procedure prescribed under Section 104 of the H.P. Tenancy and Land Reforms Act? 5) Whether the Courts below have misconstrued the Agreement Ext.D-1 and the findings stand vitiated for partly allowing the application under Order 18 Rule 17A CPC?” From the evidence led by the parties and more particularly the statements of Smt. Ansuya Devi (PW-1) and Shri Sewa Singh (PW-2), the undisputed position which emerges is that Kuldip Singh and Sushil Kumar were born on 20.2.1963 & 4.12.1967 respectively. Thus, in the year 1973 i.e. the year in which their status was recorded as tenants in the girdawri (revenue record Ext.P-4), they were minor and they were jointly living with their father appellant Pirthi Chand. It is not the case 4 of the appellants that the tenancy in their favour was through their guardian and father. Therefore, Kuldip Singh and Sushil Kumar being minor could not have been contracted to be the tenants of the plaintiffs. From the statement of Brahm Singh (PW-3), it has also come on record that except for the entry in Khasra Girdawri Ext.P-4, there is no other record showing the creation of tenancy. The fact that the tenancy was actually created in their favour is also not evident from any contemporaneous or documentary evidence or material on record. The appellants have not been able to produce any rent agreement or show any payment of rent to the plaintiffs. They possibly could not have been tenants as they were jointly residing with their father Pirthi Chand who was a co-owner along with the plaintiffs. It is not the case of Pirthi Chand that it is he who had created tenancy in favour of his sons. It is the specific case of the defendants No. 1 & 2 that they are the tenants of the plaintiffs. The revenue officials had un-authorisedly made entries in the revenue record. The first Appellate Court has gone into the question with regard to the jurisdiction of the Civil Court. That the Civil Court could have entertained the suit is seriously not disputed before me. But what has been contended is that due to the conferment of proprietary rights upon the tenants by virtue of the order dated 22.10.1993, the plaintiffs ought to exhaust 5 alternate remedy which lies with them in accordance with law and the suit should be dismissed. The contention is devoid of merit for the simple reason that the proprietary rights were conferred upon the appellants Kuldip Singh and Sushil Kumar only during the pendency of the suit and that too in the absence of the plaintiffs. The suit as framed was correctly entertained and adjudicated by the Civil Court. Further, the first Appellate Court has held as under:- “Coming to the submission that the application under Order 18 Rule 17-A CPC was wrongly partly dis- allowed. This submission has been made to be rejected which is rejected for the reasons given herein. The first prayer made was that an agreement entered into in between one of the plaintiff’s predecessor-in-interest and another party be allowed to be proved which was allowed to be taken in evidence and was admitted as Ext.D-1. The said agreement was in between two private parties including one of the predecessor-in-interest of the plaintiffs and it referred to possession of the land which was not land in suit and there is nothing which could assist the defendants No.1 and 2 to hold that the plaintiffs had admitted their possession over the suit land in unequivocal terms. The second prayer made was that defendants No.1 and 2 could not appear in the witness box and now they should be allowed to be examined as a witness. A perusal of the record shows that three dates were given to the defendants including defendant No.3, their father, who had filed the written statement jointly alongwith them and the evidence of the defendants was closed by 6 their counsel by making a statement in Court which was duly recorded. Thus no prejudice has been caused to the defendants No.1 and 2 and it has been rightly observed by learned trial Court that the application under Order 18 Rule 17-A C.P.C. can be allowed to produce the evidence which was ‘not within the knowledge of the party’ and as such the application was rightly partly allowed.” I am in agreement with the same. The Courts below have correctly held that the plaintiffs along with Pirthi Chand are owners in possession of the land comprised in Khewat No. 31 min, Khatauni No. 36 & 37, khasra No. 1108, measuring 6-12 kanals situated in village Mubarkpur, Tehsil Amb, Distt. Una, H.P. For the aforesaid reasons, the present appeal is dismissed. The questions of law are answered accordingly. The trial Court record be sent back. In view of the dismissal of the appeal, all the miscellaneous applications are also dismissed. February 26 2008. (Sanjay Karol) (rana) Judge.