IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.303 of 1996 with CMP No.487 of 1996 alongwith RSA No.305 of 1996 with CMP No.491 of 1996. Judgement reserved on: 24.6.2008. Date of decision:June 27,2008. Agya Ram ….. Appellant. Vs. Municipal Corp.Shimla …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr.Romesh Verma, Advocate. For the Respondent : Mr.K.L.Bali, Advocate. Kuldip Singh, Judge. The separate judgments, decrees dated 18.3.1996 passed by learned Additional District Judge, Shimla in Civil Appeal No.9-S/13 of 1992 and Civil Appeal No.10-S/13 of 1992/96 have been assailed by plaintiff in RSA No.303 of 1996 and RSA No.305 of 1996 respectively. 2. The facts, in brief, are that appellant filed a suit praying therein that he is owner in possession of land measuring 12 x 12 square feet on which Dhara is situated and respondent be restrained permanently not to cause any interference in the said Dhara. The further pleaded case of the appellant is that he is in possession of Whether the reporters of the local papers may be allowed to see the Judgment? …2… area measuring 12 x 12 square feet comprised in Khasra No.274 Khatauni No.164/430 situated in station ward, Bara Shimla. The appellant had constructed a shed on the said land and had kept his luggage of domestic use in the said Dhara and is using the said Dhara as a store. The respondent had allotted the Dhara to one Bansi Lal for a period of three months in connivance with said Bansi Lal. The respondent has no right, title and interest in the Dhara which is in use and occupation of appellant for the last many years. The land was lying open and there was a shed on the remaining 58 square meters. The appellant thought that the said land is of no use to any person and, therefore, he constructed a Dhara on a portion of the land in the year 1968 and since then he had been in possession of Dhara. On 21.12.1988 Bansi Lal had come with the representative of respondent alleging that Dhara had been allotted to him. The appellant has alleged that he has right, title and interest in the land and the Dhara and respondent has no right to allot the Dhara to Bansi Lal. In these circumstances, the appellant filed the suit. Bansi Lal was impleaded defendant No.2 but was later on deleted as a party in the suit. 3. The suit was contested by respondent by filing written statement in which preliminary objection of maintainability was taken on the ground that appellant is not in possession of the suit property, therefore, suit is not maintainable. The preliminary objections of jurisdiction of the Court to try the suit, non-joinder of necessary party, the suit property has not been properly identified were also taken. On merits, it was pleaded that respondent had never allotted the land …3… to appellant. The Dhara was allotted to Bansi Lal purely on temporary basis for a period of three months. The appellant was never in possession of the Dhara. The respondent has every right, title and interest in the suit property. The respondent prayed for dismissal of the suit. The appellant filed replication to the written statement of respondent wherein he reiterated his case. The learned Sub Judge 1st Class, Court No.(1) partly decreed the suit of appellant on 20.12.1991 by holding that the appellant is in possession of the suit property since 1968 but he has not become owner of the suit property by way of adverse possession. The remaining claim of the appellant was rejected. The respondent filed Civil Appeal No.9-S/13 of 1992 against the judgment and decree dated 20.12.1991. The appellant also assailed judgment, decree dated 20.12.1991 by way of Civil Appeal No.10-S/13 of 1992/96, both the appeals were decided by learned Additional District Judge, Shimla by separate judgments and decrees dated 18.3.1996 and dismissed the suit of the appellant. The appellant has filed two appeals against separate judgments, decrees dated 18.3.1996 passed by learned Additional District Judge, Shimla. The appellant in each appeal has framed following substantial questions of law:- i) Whether prior service of notice to Municipal Corporation, Shimla before institution of suit was essential? ii) Whether on the plea of non-joinder of all the necessary parties, the suit cannot be dismissed? …4… iii) Since the appellant has been held to be in possession of the suit property, therefore, he is entitled to decree of injunction as a person in settled possession cannot be dispossessed except through due process of law? iv) Whether there has been misreading and mis-appreciation of the pleadings of the parties as well as evidence on record? v) Whether the appellant could not be non- suited on the question of identity of suit property? 4. Both the appeals were admitted on 26.12.1996 but without referring or framing any substantial questions of law. At the time of hearing the aforesaid questions were treated substantial questions of law and learned counsel for the parties were heard on aforesaid five substantial questions of law. 5. The appellant has filed CMP No.487 of 1996 in RSA No.303 of 1996 and CMP No.491 of 1996 in RSA No.305 of 1996 for withdrawal of the suit with liberty to file fresh suit on the same cause of action. These applications were ordered to be heard along with the main case. The suit of the appellant has already been dismissed by learned Additional District Judge. In the applications, it has been stated that the learned Additional District Judge has held that the suit was not maintainable on the ground that description of the suit property had not been properly given and no prior notice had been served on Municipal Corporation, Shimla as well as suit is bad for failure to join State of Himachal Pradesh. It has been submitted that …5… suit has been dismissed on technical grounds and on procedural lapses and, therefore, appellant now by way of aforesaid two applications has sought permission in second appeal to withdraw the suit with permission to file fresh suit on the same cause of action. The learned Additional District Judge has not held that appellant is in possession of the suit land. The suit of the appellant has been dismissed by learned Additional District Judge on many grounds. In R.Rathinavel Chettiar and another versus V.Sivaraman and others, (1999) 4 SCC 89, the Supreme Court has held that where a decree passed by the trial Court is challenged in appeal, it would not be open to the plaintiff at that stage, to withdraw the suit so as to destroy the decree. The rights which have come to be vested to the parties in the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody’s vested rights. In the applications for withdrawal of the suit with permission to file fresh suit no such case has been made out by the appellant. Accordingly, both the applications being CMP No.487 of 1996 and CMP No.491 of 1996 are dismissed. SUBSTANTIAL QUESTION OF LAW NO.(i): 6. In the plaint prayer has been made that the plaintiff is owner in possession and the land measuring 12 x 12 feet on which a Dhara is situated, the defendant be restrained permanently not to interfere in the said Dhara. In other words, the prayer in the plaint is composite. The prayer made in the plaint makes it clear that nature of the suit is for declaration and injunction. The Himachal Pradesh …6… Municipal Corporation Act, 1979 was applicable when the suit was filed, according to Section 392 of the said Act no suit against the Corporation shall be instituted unless a notice of two months in writing is given to the Corporation. There is nothing on record to show that such notice was given by the appellant to respondent in the present case before institution of the suit. In these circumstances, in absence of requisite notice suit is not maintainable. The substantial question of law No.(i) is decided against the appellant. SUBSTANTIAL QUESTION NO.(II): 7. The perusal of the plaint would show that the appellant has made a prayer that he is owner in possession of the land and Dhara in question. The suit property is part of Khasra No.274 vide Jamabandi 1950-51 Ext.P-1 which is owned by Provincial Government. The appellant is claiming ownership of the suit property, therefore, State of H.P. is a necessary party. The Rule 9 Order 1 prescribes that no suit shall be defeated by reason of the misjoinder or non-joinder of necessary parties but proviso to Rule 9 further provides that nothing in the said rule shall apply to non joinder of a necessary party. In other words, in absence of necessary party, the suit will fail. The appellant is claiming ownership of the suit property which as per Ext.P-1 is owned by State of Himachal Pradesh, therefore, State of Himachal Pradesh is a necessary party, hence, suit in absence of State of Himachal Pradesh is not maintainable. The substantial question of law No.(ii) is decided against the appellant. …7… SUBSTANTIAL QUESTION OF LAW NO.(iii): 8. The trial Court had held that the appellant is in possession of the suit property. In the impugned judgment, point No.1 for determination before the lower appellate Court was to the effect that whether the plaintiff is in possession of the suit land and is entitled to injunction. This point was answered by the lower appellate Court in negative. In other words, the learned lower appellate Court has not found the appellant in possession of the suit property nor he was held to be entitled to injunction. The learned lower appellate Court in the impugned judgment has nowhere held that the appellant is in possession of the suit property. In these circumstances, the appellant is not entitled to injunction, hence, substantial question No.(iii) is decided against the appellant. SUBSTANTIAL QUESTION OF LAW No.(v): 9. Khasra No.274 as per Jamabandi Ext.P-1 is a big Khasra number and out of that appellant is claming possession of land and Dhara on land measuring 12 x 12 feet. The suit property has not been identified by the appellant by placing and proving tatima on record so as to identify the suit property. The identification of the suit property is absolutely necessary in order to pass any effective decree. It is different matter that suit of the appellant on other grounds is not maintainable. Therefore, in absence of identity of the suit property the suit is not maintainable and substantial question of law No.(v) is also decided against the appellant. …8… SUBSTANTIAL QUESTION OF LAW No.(iv): 10. The substantial question of law No.(iv) has been framed in a general manner. The appellant has nowhere pleaded his titled in the plaint. He has also not pleaded who has put him in possession of the suit property. At the most his case in the plaint is that some land was lying vacant and on that land he had constructed a Dhara. The appellant has not led any reliable evidence on record to show that when he constructed the Dhara. The appellant has not produced any mason or labourer who helped the appellant in constructing the Dhara. He has not produced any receipts of the material used for construction of Dhara. The learned lower appellate Court has appreciated the material on record rightly. Nothing specific has been pointed out on what points the learned lower appellate Court has misread or misinterpreted the pleadings and evidence on record. The view taken by the learned lower appellate Court is possible in view of material on record. The appellant has failed to make out any case for interference. 11. No other point was urged. 12. The result of above discussion, both the appeals being RSA No.303 of 1996 with CMP No.487 of 1996 and RSA No.305 of 1996 with CMP No.491 of 1996 are dismissed with no orders as to costs. June 27, 2008. ( Kuldip Singh ) (soni) Judge.