IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 46 of 1997 Reserved on : 23rd October, 2009 Date of Decision: 29th October, 2009 Parmeshwari Dass and others Appellants. Versus Roshan Lal and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1?No. For the appellants: Mr. N.K.Thakur, Advocate. For the respondents: Mr. Ajay Sharma, Advocate. Sanjay Karol, J. The present appeal arises out of concurrent findings of fact recorded by the Courts below. The appellants, who are plaintiffs, filed a suit for permanent injunction against the original defendant, predecessor-in-interest of the present respondents, in the Court of Sub Judge, Ist Class, Court No.1, Amb, District Una, which was dismissed in terms of judgment and decree dated 16.1.1992. Plaintiffs’ appeal assailing the same also stands dismissed by the District Judge, Una, HP, in terms of judgment and decree dated 29.11.1996. Whether the reporters of Local Papers are allowed to see the Judgment? The present appeal stands admitted on the following substantial questions of law:- “1. Whether the impugned judgments are the result of mis-interpretation and mis-construction of the documentary evidence, like as Ext.D-1 and Ext.D-2? 2. Whether a co-sharer is competent to induct a tenant over the joint land without there being any partition and if such tenancy is created, whether it binds the other co-owners? 3. What is the effect of the order of learned C.O. in the fake of the facts and circumstances of the case? 4. Whether the revenue record i.e. jamabandi which has been prepared unauthorisedly carry the presumption of truth? 5. Whether the plea of tenancy is acceptable without there being any payment of rent? 6. Whether a person can claim tenancy over the land which is not fit for cultivation?” It is a settled position of law that substantial questions of law must arise out of the pleadings of the parties and the case set up by them on record. The pleaded case of the plaintiff as set out in the plaint is reproduced in totality. “1. That the land measuring 45 kanals 5 marlas as fully described in the headnote of the plaint is owned by the plaintiffs and other cosharers of Taraf Brahmanan Hasab Hissas Jaddi of the village and is possessed by the plaintiffs on the spot since ancestors. The suit land is a Banjar Qadim and the plaintiffs have been cutting the grass and taking the other fruit from trees and taking the resin income. The chil trees have been auctioned by the plaintiffs and other Malkan of Taraf Brahmanan to Shri Nanak Chand and the contractor has taken permit from District Forest Officer, Una. The defendant never came into possession nor ever he was inducted tenant at will by the plaintiffs or other cosharers (Malkan of Taraf Brahmanan. Fard Jamabandi for the year 1980-81 is attached. 2. That the village Gondpur Jattan was under consolidation operation and the petitioners have been frequently giving signs on consolidation proceedings like scheme etc. But the plaintiffs never inducted the defendant as tenant at will nor ever they were aware of such proceedings. Patwari and Girdawar Consolidation have been living in the house of the defendant during the consolidation operation. The plaintiffs are in possession of the suit land before and after the consolidation. 3. That the defendant has no right, title or interest or any concern with the suit land. 4. That the defendant is threatening to cut the grass from the part of the suit land forcibly for the last one week. 5. That the defendant has been asked many times to restrain himself from illegal interference and threatening and to respect the possession of the plaintiffs but he has been finally refused to do so since yesterday. 6. That the cause of action arose to the plaintiffs on throwing threats and finally on his refusal to accede the request of the plaintiffs. 7. That cause of action arose and suit land is situated and permanent place of residence of the parties is situated within the limits of local jurisdiction of this Hon’ble Court. Hence this court has jurisdiction to try the suit. 8. That value of the suit for the purposes of court fees and jurisdiction is fixed at Rs.130/-. 9. That it is, therefore, prayed that permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiff or cutting the trees or grass or raising any sort of construction over the land measuring 45 kanals 5 marlas bearing Khewat No.27, Khatauni No.67, khasra No.595 as entered in the Jamabandi for the year 1980-81 situated in village Gondpur Jattan H.B. No.94, Tehsil Amb, District Una, HP be passed in favour of the plaintiff and against the defendant in the best interest of justice.” The substantial questions of law framed in the present appeal, in my considered view do not arise for determination for the reason that the orders passed by the Consolidation Officer, particularly with respect to which substantial question of law No.3 has been framed, were never assailed by the plaintiffs in the Civil Suit. The plaint has been cleverly worded without even alleging that any order was passed by the Consolidation Officer or that any revenue entry was fraudulently or otherwise corrected by the authorities carrying out the consolidation work in favour of the defendant. Importantly, no reference of any order or fraud perpetuated by the defendant in connivance with the revenue officers was pleaded or relief claimed for. The Courts below have concurrently held that the plaintiff is in long standing possession of the suit premises and in fact, the trial Court based on the statement of plaintiff No.1 has held that consolidation proceedings were held in the village where the suit land was situated and for the said purpose a committee was formed, of which the plaintiff alongwith original plaintiff No.3 Shri Nanak Chand were members. Incidentally Shri Nanak Chand was also the President of the Committee. The witness admitted that the defendant had moved an application for correction before the Consolidation Officer for recording his continuous possession on the suit land. The application having been favourably decided in favour of the defendant and the revenue entries having been corrected by the revenue authorities, the plaintiffs themselves had assailed the orders before the Appellate Authority in accordance with the provisions of the revenue laws. Even the first Appellate Court has noticed that as per Misal Haquiat Istemal (Ext.D-1) for the year 1986-87 the cultivation on the suit land is that of the defendant as Gair Morusi. Similar entries are also recorded in the Misal Haquiat (Ext.D-2). In the written statement, the defendant has categorically pleaded that 22 Kanals 11 Marlas of land out of the suit land was in his possession as non-occupancy tenant and after coming into operation of the H.P. Tenancy and Land Reforms Act and Rules, the same vested in him in absolute ownership. During the process of consolidation the entries wrongly reflecting the plaintiffs to be the owners were corrected by the Assistant Consolidation Officer and the Consolidation Officer after making a detailed inquiry. The defendant as owner has been cutting grass on the land uninterruptedly over a long period of time. The first appellate Court has rightly appreciated the order passed by the Director, Consolidation, on 16.7.1987 (Ext.D3) evidencing the fact that the plaintiff had filed a petition under Section 54 of the H.P. Consolidation Act assailing the order dated 13.11.1984 passed by the Consolidation Officer whereby the defendants possession to the extent of his claim was recorded over part of the suit land. The Court below rightly held that the order of the Consolidation Officer dated 13.11.1984 was assailed by the plaintiffs by filing an appeal on 30.7.1985 which was prior to filing of the suit on 2.11.1985. The plaintiff has unsuccessfully assailed the initial orders passed by the Consolidation Officer which has now attained finality. Even in the instant suit these orders have not been assailed. It is also not the pleaded or proven case of the plaintiffs that the entries had been recorded by perpetuating a fraud, coercion or misrepresentation. Hence, in my considered view the Courts below have rightly appreciated the material on record while rejecting the plaintiffs’ suit/appeal. The plaintiffs themselves having participated in the Consolidation proceedings before the appropriate authorities cannot be allowed to now assail the said orders without making any basis with respect thereto in the plaint. In the aforesaid background, the substantial questions of law do not arise for consideration at all. Mr. Thakur has invited my attention to the decisions reported in Amal Kumar and others vs. Bhupinder Singh and others, 1976 PLJ 26, Durga (deceased) and others vs. Milkhi Ram and others, 1969 PLJ 105 and Telu Ram vs. Hari Kumar and another, (1975) ILR Himachal Series 464. The ratio of law in the said decisions is not applicable to the facts of the instant case. I find no infirmity, illegality or perversity in the impugned judgments and decrees and the appeal is accordingly dismissed. However, there shall be no order as to costs. 29th October, 2009 (Sanjay Karol) (C) Judge.