IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 31 of 1999. Reserved on:21.4.2009. Decided on: 7.5.2009. __________________________________________________ Cheengo Ram. … Appellant. Versus Jai Paul and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ashwani Kumar Sharma, Advocate. For the Respondents : Mr. Neeraj Gupta, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 31.8.1998 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. III-G/XIII/97. Brief facts necessary for adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for perpetual injunction and in the alternative for possession. The suit was dismissed by the learned trial Court on 10.12.1997. The plaintiff preferred an appeal before the learned District Judge, Kangra at Dharamshala. She dismissed the same on 31.8.1998. This regular second appeal is directed against the judgment and decree dated 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 31.8.1998 passed by the learned District Judge, Kangra at Dharamshala. This regular second appeal was admitted on the following substantial question of law: 1. Whether the compromise arrived at inter se between the parties for the purpose of disposing of the stay application could give rise to any legal right to the defendants to claim possession over the suit land, when in such compromise they had undertaken to allow raising construction over the disputed land entirely at their own risk and peril? 2. Whether the possessory rights over the Abadi Deh land are recorded in the revenue record and if not what is the mode of proof of such rights by the parties over the Abadi Deh land? 3. Whether the defendants were entitled to claim their possession over the suit land when no documentary proof was adduced on record that the sale deed Ext. DW- 1/A had also transferred any right in their favour with respect to the possession over the suit land? Mr. Ashwani Kumar Sharma has strenuously argued that the judgments and decrees passed by both the learned Courts below are not sustainable. He has further argued that the parties had already arrived at compromise but this fact has been ignored by both the learned Courts below. He further contended that both the Courts below have mis-construed Ext. DW-1/A. Mr. Neeraj Gupta has supported the judgments and decrees passed by both the learned Courts below. 3 Since all the questions of law are inter-linked, they have been taken up for adjudication to avoid repetition of discussion of evidence. I have heard the parties and perused the record carefully. The suit land is classified as Abadi Deh. Ext. PY shows Khasra No. 79 as Abadi Deh measuring 3.6 Kanals and out of it, one Kanal is classified as “Barani-ek-fasli” and 2.8 Kanals is recorded as Abadi. In Ext. P-2 i.e. copy of Jamabandi for the year 1982-83, Khasra No. 275 is recorded as Abadi Deh. Similarly, Ext. P-3 i.e. copy of Jamabandi for the year 1978-79, shows that Khasra No. 275 has been carved out from old Khasra No. 79 and is classified as Abadi. Copy of Jamabandi for the year 1982-83 (Ext. D-6) shows Chingo Ram in possession of land comprised in Khasra Nos. 273 and 274. Ext. D-9, copy of Jamabandi for the year 1978- 79 shows Khasra No. 275 to be Abadi Deh. Similarly, in Ext. D-11, i.e. copy of Jamabandi for the year 1965-66, Khasra No. 79 is recorded as “Abadi Tika” and one Kanal of the land is classified as “Barani-ek-fasli” and over land measuring 2.6 Kanals, there is “Gair-Mumkin-Abadi”. PW-1 Roshan Lal has deposed that he did not see any remnants of any house over this property. According to him, a part of it is vacant and over 15 Marlas kitchen garden is raised. He has not seen the old house of Chingo Ram. PW-2 Preeto Devi has deposed that Khasra No. 275 belongs to the plaintiff as owner and adjoining land comprised in Khasra Nos. 273 and 274 also belongs to the plaintiff. According to her testimony, entire Khasra No. 275 was made cultivable and part of it was converted into thrashing 4 floor. She has admitted that defendants purchased land from one Raju Ram in 1986. The defendants started dispossessing them forcibly. She also admitted that the disputed land is situate at a distance of one furlong from their house. PW-3 Gian Chand has testified that plaintiff remained in possession of the land and he did not see either Ronku or Sant Ram in possession. PW-4 Jaisi Ram has deposed that Gurditta had a house over the disputed property. His statement is contrary to the averments contained in the plaint. DW-1 Jai Pal has deposed that they purchased land from Raju Ram through a sale deed Ext. PW-1/A. Raju Ram delivered them possession. They have raised a house upon it. DW-2 Raja Ram had deposed that he had purchased land from Sant Ram and he sold it to defendants and also delivered the possession. When he purchased this land from Sant Ram, it was vacant. DW-3 Labhu Ram saw possession over the suit property with defendants and earlier with Raju Ram. DW-4 Kishori Lal proved copy of sale deed Ext. DW-4/A. It was scribed by Moti Ram. DW-6 was the marginal witness of Ext. DW-4/A. According to Chaman Lal, Patwari, “Khasra Paimaish” was prepared in the year 1968 and the area was included in Abadi Deh. It is evident from the evidence led by the defendants that they have purchased the land from Raju Ram. Raju Ram had purchased the land from Sant Ram. Sant Ram got the land from Smt. Ronku Devi. The oral evidence produced by the plaintiff does not prove that the forefathers of the plaintiff had a house and they were in possession of the Abadi Deh. The defendants, as noticed above, have purchased the land on the basis of sale deed Ext. DW-4/A. The parties have arrived at 5 compromise during the pendency of the suit. The defendants have agreed to raise the construction subject to the outcome of the civil suit. They have raised the construction during the pendency of these proceedings. This agreement was only arrived at when the application under Order 39 Rules 1 & 2 of the Code of Civil Procedure was decided. Since the plaintiff has failed to prove his possession over the suit land, the construction raised by the defendants cannot be demolished. The Courts below have correctly construed Ext. DW1/A. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. May 7, 2009. (cr)