IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 205 of 2000. Judgment reserved on : 31.3.2010 Date of decision : 3.5.2010. Garibu ..Appellant. Vs State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. G.D.Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the respondent : Mr. P.K.Sharma, Addl. A.G. with Mrs. Shubh Mahajan, DAG. Kuldip Singh , Judge This appeal has been directed against judgment, decree dated 8.2.2000 passed by learned District Judge, Bilaspur in Civil Appeal No. 100 of 1993 affirming judgment, decree dated 25.6.1993 passed by the learned Sub Judge 1st Class, Ghumarwin in Case No. 97-1 of 1988. 2. The appellant had filed a suit for declaration that he is owner in possession of the land measuring 1-15 bighas comprised in Khasra No. 416/341/1, Khata Khatauni No. 98 min/103 min situated in village Tentha, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur. The order dated 4.5.1987 passed by the Divisional Commissioner, Shimla and order dated 10.2.1988 passed by the Financial 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Commissioner, Himachal Pradesh are illegal and do not affect the rights of the appellant. A prayer for permanent injunction restraining the respondent from interfering in the suit land or changing the nature thereof was also made. In alternative, a decree for damages on account of compensation and damages in case the appellant is held not entitled to the suit land in view of orders of Divisional Commissioner and Financial Commissioner or if the appellant is dispossessed forcibly or otherwise by demolishing the house of appellant situated on the suit land. In further alternative, a decree of possession has also been prayed if the appellant is dispossessed during the pendency of the suit. 3. The pleaded case of the appellant is that he is owner in possession of the suit land. The appellant had applied for grant of Nautor land 32 years ago and possession of the suit land was delivered to appellant and since then he is in continuous possession of the suit land. The appellant had come to know that suit land was not part of the Nautor granted to him, therefore, he applied for grant of suit land to Deputy Commissioner, Bilaspur under Rule 27-B of the H.P.Nautor Land Rules. The suit land was then granted to appellant by the Deputy Commissioner vide order dated 13.2.1986 and ‘patta’ was issued to him by District Collector, Bilaspur on 26.7.1986. 4. Lohka Ram filed an appeal before the Divisional Commissioner, the appeal was time barred. The Divisional Commissioner illegally set aside the order dated 4.5.1987. The appellant filed appeal before the Financial Commissioner, Himachal Pradesh which was dismissed on 10.2.1988. The order dated 10.2.1988 is wrong, illegal. 3 5. The appellant had improved the suit land by spending Rs.15000/- and constructed a residential house measuring 13 ½ x 13 ½ feet. The appellant is entitled to recovery of improvement effected by him on the suit land in case he is not found owner of the suit land. 6. The suit was contested by respondent by filing written statement in which preliminary objections of lack of notice under Section 80 CPC, locus-standi, cause of action and jurisdiction were taken. On merits, the claim of the appellant was denied. It was pleaded that respondent is owner of the suit land and appellant is in unlawful possession. The suit land was wrongly allotted to appellant under Rule 27-B of the H.P. Nautor Rules by the authorities. The allotment was set-aside by Divisional Commissioner and Financial Commissioner, higher authorities. 7. Lohka Ram, defendant No.2 contested the suit by filing written statement and he took more or less the same objections as taken by respondent. The appellant had filed separate replication to the written statements of defendants No.1, 2 and reiterated his case set-up in the plaint. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession over the suit land as alleged? OPP. 2. Whether the order dated 4,5,1987 of Divisional Commissioner, Shimla and order dated 10.2.1988 of Financial Commissioner of H.P. are wrong and illegal as alleged? OPP. 3. Whether the defendants are interfering or changing the nature of suit land as alleged? OPP 4 4. Whether the plaintiff is entitled for possession if found to be dis-possessed during the pendency of the suit as alleged ? OPP. 5. Whether no legal notice has been served under Section 80 CPC as alleged? OPD. 6. Whether the suit is not maintainable as alleged? OPD. 7. Whether this Court has no jurisdiction to entertain and try the suit as alleged? OPD. 8. Whether the plaintiff is estopped to file the suit as alleged? OPD 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD 10. Whether the plaintiff is entitled to recover Rs.10,000/- as compensation from defendant? OPP. 11. Relief. The issue No.1 was partly answered in affirmative, issues No. 2,3, 5 to 10 were answered in negative and it was held that issue No.4 was become redundant and the suit was dismissed on 25.6.1993 by the learned Sub Judge. The appellant filed 1st appeal against decision dated 25.6.1993. In the 1st appeal State of Himachal Pradesh and Lohka Ram were impleaded respondents. The name of Lohka respondent was deleted by learned first appellate court on 8.4.1996. The learned District Judge on 8.2.2000 affirmed the judgment, decree dated 25.6.1993. In appeal, the appellant has challenged the judgment, decree dated 8.2.2000 which has been admitted on following substantial questions of law:- 1. Whether findings as recorded by both the courts below being contrary due to mis-reading of pleadings as well as oral and documentary evidence on record are vitiated? 2. Whether courts below failed to exercise jurisdiction in accordance with law by failure to examine and determine plea of limitation which was raised on behalf of appellant on the point of maintainability of appeal before the Ld. Divisional Commissioner against order of grant by Dy. Commissioner, Bilaspur dated 13.2.1986? 5 3. Whether decision of the suit would be changed by considering the plea of limitation as raised on behalf of the appellant and due to consideration of the oral as well as the documentary evidence on record? 9. I have heard the learned counsel for the parties and have also gone through the record. Mr. G.D.Verma, Senior Advocate, learned counsel appearing on behalf of the appellant has submitted that the appeal against the order dated 13.2.1986 before the Divisional Commissioner was time barred. The two courts below have not considered this aspect. The decision of the suit would be changed in case plea of limitation of appellant regarding the filing of appeal before Divisional Commissioner against the order dated 13.2.1986 of Deputy Commissioner is considered taking into consideration oral and documentary evidence on record. The oral and documentary evidence has been misread. The learned Additional Advocate General has supported the impugned judgment, decree. 10. The substantial questions of law No.2 and 3 are inter- connected, therefore, both of them are taken up together for disposal. PW-1 Garibu in his statement has stated that appeal of Lohka Ram was not within limitation but he has not elaborated how the appeal of Lohka was not within limitation. Ex.P-4 is the order dated 4.5.1987 passed by the Divisional Commissioner in Nautor Appeal No. 102/86 Lohka Ram Vs. State of H.P. and another. The appellant has not placed on record anything to show how the appeal of Lohka Ram filed by him before the Divisional Commissioner against the order dated 13.2.1986 of Deputy Commissioner was barred by limitation. It was for the appellant in the suit to bring on record material to show that the 6 appeal filed by Lohka Ram before the Divisional Commissioner against order dated 13.2.1986 of Deputy Commissioner was time barred and Divisional Commissioner decided the appeal without considering the question of limitation. The statement of appellant that the appeal of Lohka Ram before the Divisional Commissioner was time barred is not sufficient to come to the conclusion that Divisional Commissioner decided the appeal on 4.5.1987 which was time barred and before deciding the appeal he did not consider the question of limitation. 11. There was no specific issue that order dated 4.5.1987 before Divisional Commissioner was time barred. However, issue No.2 was with respect to legality of order dated 4.5.1987 of Divisional Commissioner and order dated 10.2.1988 of Financial Commissioner. This issue was decided against the appellant by the learned Sub Judge. The perusal of judgment dated 25.6.1993 indicates that it was not argued before the learned trial Court on behalf of the appellant that appeal filed by Lohka Ram before Divisional Commissioner was time barred. In the grounds of appeal in the lower Appellate Court, the appellant had taken the ground that the appeal before the Divisional Commissioner was time barred but again perusal of judgment dated 8.2.2000 indicates that no contention at the time of hearing of the appeal before the learned District Judge was raised on behalf of the appellant that appeal before the Divisional Commissioner was time barred. Moreover, even if it is assumed that such contention was raised in the Courts below but appellant has miserably failed to prove that the appeal before the Divisional Commissioner filed by Lohka Ram was time barred. In these circumstances, substantial questions of law No.2 and 3 are decided against the appellant. 7 12. It has been submitted that the two courts below have mis- read the pleadings, oral and documentary evidence in dismissing the suit of the appellant. It has been submitted that on account of misreading of pleadings and evidence the impugned judgment, decree are not sustainable. It has not been specifically pointed out which part of the pleadings or evidence has been mis-read by the Courts below. It is not the case of the appellant that inadmissible evidence has been considered and material evidence affecting the decision on merits has been ignored. In second appeal, re-appreciation of evidence is not permissible. The impugned judgment, decree are not shown to be perverse. The view taken by the two courts below emerges from the evidence on record. The substantial question of law No.1 is accordingly decided against the appellant. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 3, 2010. (GR)