IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 309 of 1999. Judgment reserved on: 1.4.2010. Date of Decision: April 22nd, 2010 Manohar Lal Khullar and another. .. Appellants. Versus Mool Raj. .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellants: Shri Ajay Sharma, Advocate. For the respondent: Sh. Anand Sharma and Sh. Jagan Nath, Advocates. Surinder Singh, J: This second appeal was admitted on the following substantial questions of law, vide order dated 24.7.2000: “1. Whether in the facts and circumstances of the case, in the absence of the plea or issue of resjudicata and also the proof of the pleadings of the earlier suit, the court was justified in holding the plea of resjudicata on the basis of judgment Ex.PX? 2. Whether the boundary dispute could be resolved without demarcation more so when the defendant had not admitted the ownership of the plaintiff and the factum of whole of shop being part of Khasra No.275? 3. Whether the court below had exercised the judicial discretion in rejecting/ not considering the application 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - for demarcation in accordance with the instructions of the Financial Commissioner?” This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 29th April, 1999, passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.46-N/XIII-1998 whereby the learned First Appellate Court while dismissing the aforesaid first appeal filed by the appellants herein affirmed the judgment and decree passed by the learned Sub Judge (2) Nurpur in civil suit No.459/90(1988) whereby the suit filed by the respondents was decreed and appellants were held liable to be ejected from the suit property. The brief facts giving rise to the present appeal can be stated thus. The ‘respondent’ Mool Raj hereinafter to be referred as ‘the plaintiff’ filed a suit for ejectment of shop, comprised in Khasra No.275, which was earlier Khasra No.313/59/4/1, measuring 0-0-21, situated in Mohal and Mauza Jassur, Tehsil Nurpur, District Kangra, H.P. and in alternate claimed the relief of possession against the ‘appellants’ Manohar Lal, Govind Singh and Harnam Singh hereinafter to be called as the ‘defendants’. Harnam Singh, defendant in the suit, died during the pendency of the lis before the trial court and his name was ordered to be deleted vide order dated 22.1.1991 from the array of defendants. The plaintiff alleged that defendant Manohar Lal was a tenant in the aforesaid shop, which was later purchased by him from Harnam Singh (deceased) through his General Attorney Govind Singh, vide registered sale deed dated 15.5.1980. It was the case of the plaintiff that Manohar Lal was paying the monthly rent @ of Rs.140/- per month to Harnam Singh original vendor and later after its purchase till 31.3.1985, it was paid to the plaintiff. It is alleged that Govind Singh instigated Manohar Lal not to pay rent to the plaintiff with respect to the demised premises. Since the - 3 - plaintiff did not want defendant No.2 Manohar Lal to continue him as his tenant, he issued notice under Section 106 of the Transfer of Property Act, terminating his tenancy and asked him to vacate the shop in question. The said premises fell in rural area. Although said tenant sent his reply, but did not vacate and handed over the possession of the said shop to the plaintiff, as such, plaintiff in the suit sought the relief for his eviction and also for the recovery of the amount o rent to the tune of Rs.5040/- w.e.f. 1.4.1985 to 31.3.1988 @ Rs.140/- per month and alternatively, prayed for the relief of possession in case Maohar Lal is not proved to be the tenant in the said premises. The suit was resisted and contested by the defendants. In their written statements, they raised the preliminary objections and questioned the locus-standi of the plaintiff to file the suit vis-à-vis took up objection of valuation, estoppel and identification of the land. On merits, they specifically pleaded that the disputed shop did not fall in Khasra No.275 and also pleaded that the plaintiff was not entitled to purchase the shop in question in view of the bar under Section 118 of the H.P. Tenancy and Land Reforms Act as the suit property was an agricultural land. Manohar Lal defendant claimed himself to be the owner by way of adverse possession, whereas, the case of the other defendants was that the suit property originally belonged to Harnam Singh. He had constructed shops on the suit land, but later vide order dated 1.8.1990, passed by the Settlement Collector, Kangra at Dharamshala, it was held that Khasra No.275 was outside the area sold to the plaintiff. Harnam Singh died and defendant Govind Singh claimed himself to be his successor-in-interest, but he denied that the defendant Manohar Lal was ever the tenant of the plaintiff. In other words, defendants denied the case of the plaintiff in toto. - 4 - In replication, preliminary objections as well as case on merits has been denied and even paras of the plaint were reiterated. On the pleadings of the parties, the learned trial Court had framed the following issues:- 1. Whether the plaintiff is owner of the suit property on the basis of sale deed dated 15.5.80, as alleged? ..OPP. 2. If issue No.1 is proved, whether defendant No.1 is the tenant of the suit premises on monthly rent of Rs.140/- under the plaintiff as alleged? ..OPP. 3. Whether defendant No.1 is in arrears of rent w.e.f. 1.4.85 to 31.3.88, as alleged? ..OPP. 4. In case, issue No.2 is ot proved, whether in the alternative, the plaintiff is entitled to a sum of Rs.5040 from 1.4.85 to 31.3.88 at the rate of Rs.140/- per month as compensation for the use and occupation of the suit premises by defendant No.1, as alleged? ..OPP. 5. Whether the plaintiff has no locus-standi to sue, as alleged? ..OPD 6. Whether the suit not properly valued for the purpose of court fee and jurisdiction, as alleged? ..OPD. 7. Whether the plaintiff is estopped by his act and conduct to file the present suit, as alleged? ..OPD 8. Whether the suit property is not sufficiently identified, as alleged? ..OPD 8(a). Whether the shop in dispute does not fall within Khasra No.275, as alleged, if so, its effect? .OPD-1. - 5 - 8(b) Whether the plaintiff was not entitled to purchase the suit property in view of section 118 of H.P. Tenancy and Land Reforms Act, 1972, if so, its effect? …OPD-1 8(c) Whether the defendant No.1, in the alternative has become owner of the suit property by way of adverse possession, as alleged? ..OPD-1 9. Relief. After the complete trial, the suit filed by the plaintiff was decreed by the learned trial Court and arrears of rent were restricted to Rs.1440/- @ Rs.40/- per month, on the basis of the admission made by Manohar Lal in reply to the notice issued by the plaintiff under Section 106 of the Transfer of Property Act. To appreciate, in proper perspective and gravement of the contours of the controversy involved in this case, the background facts, which emerge from the evidence on record, are required to be mentioned. As a matter of fact, earlier the plaintiff had filed a suit No.460/1990/1987 against defendant Govind Singh and his wife Malivka, with respect to same Khasra No.313/59/4/1 as in this suit, which was allotted Khasra No.275 during the settlement. It was alleged therein that the suit land was earlier owned and possessed by Sh. Harnam Singh, who through his General attorney Govind Singh sold it alongwith the structure thereon to him. Thus, the defendants had no right to occupy upper portion of the roof of the shop etc. It was also alleged that the said defendants while making construction over Khasra No.274/1, situated in upper portion of the shop in dispute, started extending the construction in February, 1987, over the roof of the shop in dispute despite objections, therefore, sought permanent injunction and also mandatory injunction as well that if any construction is made on the upper portion of the shop in question be demolished. The learned Sub Judge decreed the suit, as prayed for. - 6 - The said judgment and decree passed in the previous suit was assailed by the said defendants in appeal, but it was set-aside by the learned District Judge vide his judgment & decree dated 21.12.1993, holding that the plaintiff was not able to prove his ownership of the disputed shop, as such, he has neither the locus-standi nor the cause of action to file the suit seeking relief of permanent prohibitory/ mandatory injunction. Feeling aggrieved, the plaintiff filed Regular Second Appeal No.80 of 1994 in the High Court. After considering the matter, the High Court set-aside the judgment and decree passed by the learned District Judge. The appeal was accepted and suit of the plaintiff was decreed in the same terms as it was decreed by the learned trial Court, vide its judgment Ex.PX. The High Court also observed that both the parties admitted that the shop in dispute was in possession of Manohar Lal Khullar and business in the name and style of ‘M/s Khullar and Co.’ was being carried out therein. However, as per the plaintiff, when he had purchased the shop, it was already under the tenancy of Manohar Lal Khullar, thereafter he had become its owner after the purchase of shop. In the said RSA, defendants has also moved an application under Order 41 Rule 27 for producing the additional evidence that another litigation with regard to the tenancy of shop was going on between the parties, as such the High Court need not to give its findings in this regard, but this application was rejected and before parting with the case in that RSA, the High Court observed that in its endeavour to get the matter amicably settled between the parties, with their consent, Local Commissioner was appointed on 9.10.1994 to demarcate the land comprised in Khasra No.313/59/4/1, (new 275) which was subject matter of that appeal, on the basis of original Tatima Ex.P2. Vide his statement, defendant Gobind Singh agreed that the aforesaid demarcation made be got done on the basis of Tatima Ex.P2. He also categorically stated that plaintiff Mool Raj was entitled only for two marlas of land as per sale deed Ex.P1, which - 7 - may be kept in view while deciding the appeal. Despite the agreement that the parties would not file the objections to the report of Local Commissioner, the defendants filed the objections, which were not gone into, for not accepting the report of the Local Commissioner, however the appeal filed by the plaintiff was accepted by the High Court on merits as aforesaid on 15.11.1996. There is nothing on record to show that the judgment of the High Court was further assailed in the Supreme Court. The parties to the present lis admitted about the previous litigation. Since the judgment rendered in RSA No.80 of 1994 has attained its finality and it can safely be concluded that it was the defendant Manohar Lal Khullar, who was running a shop in the disputed premises under the head and style of “M/s Khullar and Co.” as a tenant. Once it is so concluded, it stands proved that the plaintiff had purchased the suit khasra, which has the demised shop standing thereon and is specifically identified by Tatima attached to the sale deed. Thus, there is no difficulty in arriving at a conclusion that the tenancy which was earlier under Harnam Singh had passed over to the plaintiff after having purchased the same by him. Therefore, there is no reason as to why the said defendant should not have paid the rent to him. The plaintiff had also terminated his tenancy under Section 106 of the Transfer of Property Act. Although said Shri Manohar Lal Khullar vide his reply Ex.D-45 to the notice denied that he was tenant under him, but asserted that he was tenant under Harnam Singh and he was paying rent through Govind Singh General Attorney. In view of the above contention of the defendant, the plea of adverse possession raised by him is contradictory and fatal to his case and is also otherwise not proved. Further the defendants also moved an application (CMP No.687 of 2007) under Order 41 Rule 27 CPC, whereby they sought to - 8 - place on record the report of Tehsildar in a case pending before the Civil Judge (Sr. Division) Nurpur with respect to the stands in Khasra No.275. Thereafter they moved another application (CMP No.185 of 2010) for taking on record the copy of mutation No.488, copy of affidavit dated 26th August,206, filed by the plaintiff in the court of Civil Judge (Junior Division) Nurpur in a matter pending inter se Govind Singh and Mool Raj and others and certified copies of statements of Jai Chand and plaintiff Mool Raj, recorded in the year 2008 and also the reply filed in the month of March, 2008 by plaintiff Mool Raj in the High Court in CWP No.1518/2007, a copy of the reply filed in the said CWP and also other revenue papers by way of additional evidence. Both these applications were resisted and contested by the plaintiff. According to the learned counsel for the plaintiff, the demarcation was conducted in view of the orders of the High Court, passed in RSA No.80/1994, as aforesaid which was not amenable to any objection. Now again under the garb of the present litigation, the matter could not be reopened and confused by placing the report of the demarcation and other documents on record. The defendants want to reopen the whole controversy, which finally stands settled, concluded and closed. In so far as the other documents proposed to be produced are concerned, these are not at all essential for the just decision of the case. All these are either created or subsequent to the earlier list which finally concluded inter se the parties. Shri Ajay Sharma, learned counsel for the appellants has exhaustively argued the matter and thereafter placed on record unsigned written arguments. The matter had been considered. - 9 - Against the aforesaid background and the proved facts, I hardly find the necessity for allowing both these applications under Order 41 Rule 27 of the Code of Civil Procedure, for the reasons that the controversy, which is now being racked up was finally decided by the High Court in RSA No.80 of 1994. There is no doubt regarding the identification of the disputed shop. There is absolutely no spin theory that these documents are necessary even at the stage in the second appeal to identify the suit shop. Manohar Lal Khullar was only a tenant. He was neither the owner nor proved to have perfected the title by adverse possession. He has no locus-standi to agitate the title and matter with respect to the identification of the shop in question. Insofar as the defendant Govind Singh is concerned, he was a party of the earlier lis and the matter had attained its finality. Therefore, in view of the above situation, I find no reason to admit additional evidence as these documents are not necessary to pronouncing the judgment in more satisfactory manner or essential for just decision of the case, as such, the prayer for allowing additional evidence is rejected. Both the applications are dismissed and the judgments cited by the learned counsel for the plaintiff in Jeeto @ Smt. Manjit Kaur v. Union of India [2007(4) RCR (Civil) 408], H.P. State Industrial Development Corporation v. M/s Divyang Associates [ Latest HLJ 2006 (HP) 148] and Pawan Kumar v. Raj Kumar and Ors. [2007(2) (P& H) 82] are not applicable in this case. Further Shri Ajay Sharma, learned counsel for the defendants also argued that the plaintiff had played a fraud knowing it to be false that Khasra No.275 is not the same, which was purchased by him, therefore, no relief could have been granted to him. To substantiate this point, he cited Ram Chandra Singh vs. Savitri Devi and ors. [ 2004(2) Latest Judicial Reports SC 362]. - 10 - I have also examined this part of the argument, significantly the defendants have not pleaded and proved the fraud during the trial of the case, rather it stands proved that the matter stood finally settled in RSA 80/94 as far as the identity of the land is concerned. It is also ventilated that the plaintiff could not have been granted the relief because the property is in excess of the title deed of the plaintiff. To buttress his arguments, he cited the judgment of Andhra Pradesh High Court, rendered in K.Venkatasubba Reddi vs. Bairagi Ramaiah (died) and his L.Rs. [1999(2)Civil Court Cases 511 (A.P.), but on the examination of the record, I did not find this plea to be tenable, for the reasons, already discussed above. Therefore, this judicial pronouncement is of no help to him. Further the order dated 1.8.1990 of Settlement Collector, Kangra Ex.D-43 is of no consequence in view of the judgment in RSA No.80 of 1994, rendered by the High Court, with respect to identity of the disputed shop and further this order is based upon some report of Naib Tehsildar of Jassur Circle, which appears to have been accepted in absence of parties, therefore, it is nonest on the right of the plaintiff. Further, as already stated above, Manohar Lal Khullar has no locus-standi to challenge the title of the plaintiff and insofar as the Govind Singh is concerned, it stands concluded between him and the plaintiff. Against the above factual background, there is no manner of doubt that the shop in question is under the tenancy of defendant Manohar Lal Khullar, which was earlier owned by Harnam Singh and later sold to the plaintiff, as held by the High Court in RSA No.80 of 1994 and it is also not disputed that the judgment of the High Court in RSA aforesaid was not assailed before the apex Court. Therefore, for the reasons aforesaid, the learned trial Court correctly decreed the suit of the plaintiff, based upon the above facts and the first appellate court while re-appreciating the facts rightly affirmed the - 11 - findings in the judgment and decree of the learned trial Court. Therefore, I have no manner of doubt in my mind that no interference is warranted or called for and the appeal deserves to be dismissed, which is accordingly dismissed with costs throughout. The Judgment and decree of the learned lower appellate Court is affirmed and upheld with all consequences. The CMPs aforesaid accordingly stand disposed of. No other point is urged. Interim orders, if any, shall stand vacated. April 22, 2010. (Surinder Singh), (Pds) Judge.