IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 247 of 1995 Judgment reserved on 25.2.2009 Date of Decision 10.3.2009 Tej Ram ….Appellant Versus Shiam Sunder & others ….Respondents _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the Appellant : Shri Bhupinder Gupta, Sr. Advocate, with Shri Neeraj Gupta, Advocate. For the Respondents 1 & 4 : Shri Raman Sethi, Advocate For Legal representatives of respondent No.2 : Shri Sunil Mohan Goel, Advocate. __________________________________________________________ Dev Darshan Sud, J. This is the plaintiff’s appeal against the concurrent findings of the two Courts below dismissing the suit instituted by him praying for a decree of permanent prohibitory injunction for the suit land described in the plaint as Khasra numbers 1940 and 1941, Khata Khatauni No. 755/1326, measuring 2-10-0 bighas, situated in Phati Dhalpur, Kothi Maharaja, Tehsil and District Kullu H.P. In the alternative, a decree for possession is prayed for in case the respondents/defendants herein dispossess the plaintiff/appellant during the course of Court’s proceedings. The plaintiff instituted the suit of title claiming ownership on the basis of conferment as such in proceedings under the Himachal Pradesh Tenancy and Land Reforms Act, 1972 pleading that he had become absolute owner in possession of the suit land and the defendants have no right, title or interest in the suit land. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 The suit was contested by the defendants on the ground that the State of Himachal Pradesh being admittedly the owner of the suit land was a necessary party to the appeal, has not been impleaded as such. The defendants also pleaded that the plaintiff is neither owner nor in possession of the land as Devta Sangam Mahadev was recorded as occupancy tenant of the suit land through its Kardar. On the settled issues and more especially on the two primary issues as to whether suit is bad for non-joinder of necessary parties and possession of the plaintiff, both the Courts below held that as State of Himachal Pradesh was a necessary party, the suit could not proceed and on the issue possession, the Courts below on proved facts held against the plaintiff. These concurrent findings are now sought to be assailed in this appeal. Without entering into the question as to whether merely because of non-joinder, the suit was maintainable or not, the primary question which arises for determination is as to whether the appellant has been able to establish both his title or possession of the suit land. The Courts below have held against the plaintiff, holding that even the identity of the land was not established/proved. The plaintiff is now in appeal. This appeal was admitted on 25th July, 1995 on the following substantial questions of law:- 1. When the mutation conferring the proprietary rights is duly attested in favour of the plaintiff/appellant, court the Courts below go into the question of validity of the title of the plaintiff, is such enquiry beyond the jurisdiction of the Civil Courts ? 2. When the defendants’ claim regarding adverse possession over the suit land is not accepted, is it not incumbent on the Civil Court to grant a decree for possession on the basis of the title to the plaintiff whose title is established on the record ? 3. Whether the possession of the defendants can be protected under the provisions of the H.P. Urban Rent Control Act, 1987 when admittedly the dispute pertains to the land and the structures standing thereupon ? 3 4. Whether the judgment and decree of both the Courts below are vitiated on account of mis-reading and mis- appreciating the evidence and the pleadings ? Question No.1. This question as framed ex-facie would make it an important point for determination, but the submissions made on behalf of the appellant that he has become an absolute owner of the suit land by virtue of the conferment of proprietary rights by the revenue authorities, cannot be accepted. The reason is two fold:- It is admitted by the plaintiff himself when he appeared as PW1 in the witness box that the mutation Ext.D1 on the basis of which the plaintiff claims title to the suit land is under review. Secondly, the plaintiff himself admits that the occupancy tenant Devta Sangam Mahadev was not impleaded as a party/respondent before the revenue authorities. In this situation, it cannot be said that merely tendering the mutation will itself prove the fact that the proceedings relating to the conferment of the proprietary rights have been conducted in accordance with law. I need not reiterate that if Devta Sangam Mahadev was a tenant, the deity/Devta was a necessary party and the appellant could not claim any rights against the deity without it being impleaded in proceedings for conferment of purported proprietary rights. The fact that the land is owned by the State and Devta Sangam Mahadev is the tenant in possession is plain and evident from a mere reading of the jamabandi Ext.P1. There is no explanation on record as to why the tenant has not been impleaded as a party in proceedings under the Himachal Pradesh Tenancy and Land Reforms Act and it is only the government impleaded as party. It must also be noticed that both the Courts below have concurrently held that the plaintiff/appellant has disposed of some part of his land, but he has failed to establish that on which part of the land the purported encroachments have been made. The identity of the land has not been established 4 either by filing the spot map/tatima or obtaining the demarcation from the revenue Officer. The cumulative effect of all these factors is that the suit filed by the plaintiff is bereft of any merit and has been rightly dismissed. The concurrent findings of the Courts below on these facts cannot be faulted with. Questions No. 2 and 3 On the second and third questions as to whether the plaintiff was entitled to the relief of injunction, once the claim of defendants for adverse possession was rejected, the defendants can be protected under the provisions of Himachal Pradesh Urban Rent Control Act, 1987, all that need be said is that the plaintiff having failed to establish his title to the suit land, is not entitled to any relief. As noticed, not only the identity of the land has been established, but the entire purported proceedings relating to conferment of the proprietary rights have not been proved in accordance with law. On the own admission of the plaintiff/appellant, these proceedings are under review. What happened to these revenue proceedings, has not been established on the record. No effort has been made by the appellant herein to show that proceedings were either terminated in favour of the appellant or otherwise. These questions are decided against the appellant. Question No. 4 This question does not call for any determination in view of the findings established as above. The appeal is therefore dismissed. There shall be no order as to costs. March 10, 2009 (Dev Darshan Sud) (ms) Judge