IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA R.S.A. No. 561 of 2001 Reserved on : 4th August, 2011 Date of Decision:10th August, 2011 Gian Chand and another Appellants Versus Raman Kumar and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr. Ajay Sharma, Advocate. For the respondents: Mr. N.K.Thakur, Advocate, for respondents No. 1 to 4 Sanjay Karol, J. Shri Khandu Ram and Shri Tirath Ram as plaintiffs filed a suit for permanent injunction against defendants Shri Gian Chand and Shri Datta. According to the plaintiffs they had given 4 Marlas of land on Khasra No.2788, comprising two rooms with a courtyard on monthly lease to the defendants. Remaining land admeasuring 9 Marlas also on Khasra No.2788, is in possession of the plaintiffs, with which defendants are threatening to interfere, encroach upon and remove the trees existing thereupon. As such, plaintiffs prayed that Whether the reporters of Local Papers are allowed to see the Judgment? 2 defendants be restrained from interfering with their possession. 2. Defendants resisted the suit by claiming that the said land, in fact formed part of Khasra No.2659 which was owned and possessed by them and their collaterals and as such they are not lessees of the same. However, in the alternative, they claimed title thereof, by way of adverse possession. 3. Based on the pleadings of the parties, trial Court framed the following issues:- “1. Whether there exists any abadi of the plaintiffs in khasra No.2788 as alleged? OPP 2. In case issue No.1 is proved, whether the defendants are in possession of the abadi of the plaintiffs as licencee? OPP 3. Whether the plaintiffs are entitled for the relief of permanent injunction as alleged? OPP 4. Whether the defendants have acquired title to the suit property by way of adverse possession? OPD 4. In terms of judgment and decree dated 30.9.1996 Senior Sub Judge, Una, in C.S. No.246/1997, titled as Khandu Ram and another vs. Gian Chand and another, partly decreed the suit in the following terms:- “14. Since there is no definite findings with respect to the location of portion ABCD as to how much of it falls in khasra No.2789/1 and the plaintiffs have 3 sought relief only with respect to khasra No.2788, the suit of the plaintiffs is decreed in part and the defendants are restrained from interfering in the portion of land ABCD which falls in khasra No.2788 only. Decree sheet with cost be prepared in favour of the plaintiffs and the file after due completion be consigned to record room.” 5. Significantly during trial, Local Commissioner was appointed with the consent of the parties who on inspection of the spot submitted his report (Ext.P-1) alongwith site plan. Plaintiffs filed their site plan Ext.PW-1/A and defendants also filed their site plan Ext.DW-1/A. Suit was decreed on the basis of report (Ext.P-1) submitted by the Local Commissioner, who found that land denoted by ABCD on site plan Ext.PW-1/A formed part of Khasra No.2788 and 2789/1, owned by the plaintiffs. 6. Defendants appealed against the judgment and decree dated 30.9.1996 passed by Senior Sub Judge, Una, H.P. in Civil Suit No.246 of 1987, before the District Judge, Una, who in terms of judgment and decree dated 31.8.2001 passed in Civil Appeal No. 8 of 1997, dismissed the same, upholding the findings and the decree passed by the trial Court. 7. Hence defendants’ Regular Second Appeal under Section 100 of the Code of Civil procedure, 1908, against the concurrent findings of fact and decrees passed by the Courts below. Appeal was 4 admitted on the following substantial question of law:- “Whether the Courts below have misread and misappreciated the evidence on record, more specifically, the documents Exs. PW-1/A, DW- 1/A and Ex.P.1, report of the Local Commission, to decree the suit of the plaintiffs/respondents?” 8. Mr. Ajay Sharma, learned counsel for the defendants has urged that site plan Ext.PW-1/A could not have been looked into by the trial Court as the same was wrongly exhibited by the trial Court. In this regard, he has relied upon the decision rendered by the Apex Court in Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others, AIR 1971 SC 1865. In this regard, Plaintiff No.1 as PW-1, has categorically deposed that the plan was got prepared by him through an Architect, who was otherwise not available for the reason that he was out of country. In any event, the same bears signatures of the plaintiff. No objection with regard to exhibiting of the document was ever raised by the defendants during trial. That apart, correctness of this document was not disputed by the defendants during trial. The issue raised with regard to exhibiting of the document before this Court was never raised before the Courts below. Hence, at this stage, in view of the facts 5 noticed hereinabove, defendants cannot be permitted to take this plea. 9. Courts below have decreed the suit on the basis of the report of the Local Commissioner, who after complying with the principles of natural justice and in presence of the parties executed the commission and filed his report. From the record, there is nothing to show that the Courts below have wrongly appreciated report (Ext.P-1) or have misread and misappreciated the evidence placed on record by the parties, resulting into perversity of findings or travesty of justice. Plaintiffs’ witnesses have been able to establish their possession over the land with regard to which defendants were trying to interfere with. On the contrary, defendants’ witnesses, i.e. Shri Gian Chand (DW-2) and Shri Ram Tirath (DW-3) could not establish defendants’ possession over the land with regard to which, in fact defendants have taken a contradictory plea of having acquired title by way of adverse possession, which plea was rightly rejected by the Courts below. 10. From the record, there is also nothing discernable as to in what manner the Courts below have wrongly appreciated the evidence led by the parties. No question of law much less a substantial question of law arises for consideration. Hence, I do not find any ground to interfere in the instant appeal, which 6 is accordingly dismissed. However, there shall be no order as to costs. 10th August , 2011 (Sanjay Karol) (C) Judge.