IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 558 of 2000 Date of decision: 1.10.2010 Purna Devi and ors. …Appellants. Versus Tikam Ram and ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellants : Mr. Raman Sethi, Advocate. For the Respondents : Mr. V.D. Khidtta, Advocate for respondents No.1 to 4, 8 to 10, 12, 13 & 15. Kuldip Singh , Judge (oral) This appeal by defendants has been directed against the judgment and decree, dated 8.9.2000 passed by learned District Judge, Kullu in Civil Appeal No. 13 of 1999 affirming the judgment and decree, dated 27.8.1998 passed by learned Sub Judge, Lahul-Spiti at Kullu, exercising the powers of Sub Judge, 1st Class in Civil Suit No. 115 of 1993. The parties in the judgment are referred to as plaintiffs and defendants. 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes. 2 2. The facts, in brief, are that the plaintiffs had filed a suit for permanent prohibitory injunction against the defendants regarding land measuring 10 biswas bearing ‘phat’ No. 175/184, situated in Phati Parli, Kothi Kotkandi, Tehsil and District Kullu. It is the case of the plaintiffs that Phati Parli is owned by Devta Shree Narad Muni and is in possession of the plaintiffs. They are exercising their rights of cutting grass and grazing cattle thereupon from the time of their ancestors without any hindrance. Their rights are duly recorded. The defendants without any right, title and interest in April 1992 started causing unlawful interference and obstruction in the rights and possession of the plaintiffs. The plaintiffs had also filed Civil Suit No. 61/1992 with respect to disputed ‘ghasni’, which was dismissed as withdrawn vide order dated 22.1.1993 with permission to file a fresh suit on the same cause of action. The defendants after withdrawal of the suit again in January, 1993 started causing interference in the peaceful possession of the plaintiffs over the suit land. In these circumstances, the suit was filed. 3. The suit was contested by defendants by filing written statement. They took several preliminary objections such as estoppel, identification of land, the plaintiffs have not approached the court with clean hands, they have suppressed the material facts from the court and as such, the plaintiffs are not entitled to any relief of injunction. It has been pleaded that the suit is bad for non-joinder of necessary parties, i.e. State. On merits, the defendants denied the case set up by the plaintiffs. They have denied that the plaintiffs have any 3 right over the suit land. The suit land has not been properly identified and described in the plaint. The disputed ‘ghasni’ is 3rd class forest land and every villager/bartandar has right to take and cut grass from the said forest land. The defendants denied the claim of the plaintiffs and prayed for dismissal of the suit. In replication, the plaintiffs reiterated their stand and denied the defence putforth by the defendants. 4. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as alleged? OPP. 2. Whether the plaintiffs are estopped to file the present suit by their act and conduct, as alleged? OPD. 3. Whether the site plan filed along with the plaint is not correct and according to the spot position? If so, its effect ? OPD. 4. Whether the plaintiffs have filed the present suit by suppressing the material facts, if so, its effect? OPD. 5. Whether the boundaries of the suit land are not ascertainable as alleged in the preliminary objection No.4? OPD. 6. Relief. 5. The issue No.1 was answered in affirmative, issues No. 2 and 3 in negative, issues No. 4 and 5 held to have become redundant, issue No. 6 was not pressed and under issue No.7, the suit of the plaintiffs was decreed as per the operative part of the judgment, dated 27.8.1998. In appeal, the learned District Judge on 8.9.2000 has affirmed the judgment and decree, dated 27.8.1998. Hence, second 4 appeal, which has been admitted on following substantial questions of law:- 1. Whether a fresh suit was maintainable especially when in the earlier compromise suit, it was clearly stated that other than tukra No. 174 and 176, the plaintiffs would not raise objection to any villager cutting grass or grazing cattle in the land outside these two plots? 2. Whether the learned lower appellate court has totally misconstrued the provisions of Order 41 Rule 27 while dismissing the application for leading additional evidence? 3. Whether the learned lower appellate court has totally misread and misunderstood the provisions of Order 26 while rejecting the application for appointment of local commissioner? 6. I have heard Mr. Raman Sethi, learned counsel for the appellants and Mr. V.D. Khidtta, learned counsel for the respondents. I have also gone through the record. On behalf of the appellants, it has been submitted that the suit is not maintainable in view of the earlier compromise arrived at with respect to ‘tukra’ Nos. 174 and 176 in Civil Suit No. 29 of 1988. It has also been submitted that learned District Judge has erred in dismissing the application of the appellants, herein, under Order 41 Rule 27 CPC. It has been submitted that the land in dispute has not been properly identified in the plaint nor it has been identified in the evidence led by the plaintiffs. In these circumstances, the appellants had filed an application under Order 26 Rule 9 CPC for appointment of Local Commissioner so as to identify the land in dispute. This application has been wrongly dismissed by the learned District Judge on the ground not available in law. 7. The learned counsel for the respondents has submitted that no substantial question of law is involved in the second appeal. 5 The earlier compromise was with respect to ‘phat’ Nos. 174 and 176, whereas the present suit is of ‘phat’ No. 175. There was no application under Order 41 Rule 27 CPC, rather an application under Order 18 Rule 17 (A) CPC was filed. Even if, that application is construed to be an application under Order 41 Rule 27 CPC, the same was rightly dismissed inasmuch as the appellants have failed to bring their case within the parameters laid down in Rule 27 of Order 41 CPC. Insofar as the application under Order 26 Rule 9 CPC for appointment of the Local Commissioner is concerned, the same has also been rightly dismissed. The plaintiffs have identified the land in dispute in the plaint and they have proved the identification of the land in the evidence also. The learned counsel for the respondents has supported the impugned judgment and decree. Substantial question of law No.1: 8. The substantial question of law No.1 is taken up first for determination. The learned counsel for the appellants has vehemently argued that while compromising Civil Suit No. 29/1988, it was settled that there was no dispute with respect to ‘phat’ No. 175. It is not the case of the appellants that dispute with respect to ‘phat’ No. 175 was also settled in Civil Suit No. 29/1988. The simple contention that in civil suit No. 29/1988, it was settled that there was no dispute with respect to ‘phat’ No.175 is not enough when it is clear that parties have dispute with regard to ‘phat’ No. 175. The land involved in the present suit has been identified as ‘phat’ No. 175. The compromise in the earlier suit qua ‘phat’ Nos. 174 and 176 has no bearing with the 6 dispute, which has now arisen with respect to ‘phat’ No. 175. The plaintiffs have filed the suit with respect to ‘phat’ No. 175 on the ground that they have right to cut grass on ‘phat’ No. 175 from the time of their ancestors and the defendants without any right, title and interest have started causing interference on such right of the plaintiffs over ‘phat’ No. 175. The land covered by ‘phat’ No. 175 was not involved in the Civil Suit No. 29 of 1988. Therefore, compromise, if any, in that suit has no bearing in the present litigation. Hence, substantial question of law No.1 is decided against the appellants. Substantial question of law No.2: 9. Insofar as substantial question of law No.2 is concerned, the appellants, herein, had not filed an application under Order 41 Rule 27 CPC. In any case, even if the application filed by the appellants under order 18 Rule 17(A) CPC is taken to be an application under Order 41 Rule 27 CPC, then such application is to be considered in accordance with Rule 27 of Order 41 CPC, which is as follows:- “27. Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or 7 b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 10. In the application for additional evidence, it has been submitted that plaintiffs had earlier filed a civil suit against the defendants in the year 1988 being Civil Suit No. 29/1998. In that suit, the defendants and plaintiffs, herein, had agreed about the boundaries of the disputed ‘ghasni’, ‘phat’ Nos. 174 and 176, which is Ext. LC/C in Civil Suit No. 29 of 1988. The appellants/defendants by way of application for additional evidence intended to bring on record document, Ext. LC/C from the file of Civil Suit No. 29 of 1988. It has been stated that the defendants could not produce the said document at the time of leading evidence even after the exercise of due diligence. The document, Ext. LC/C is necessary in order to adjudicate the real controversy between the parities. The Civil Suit No. 29 of 1988 was decided on 1.11.1991 according to the learned counsel for the appellants. The suit, out of which the present second appeal has arisen, was instituted on 24.9.1993. The document, Ext. LC/C was very much within the knowledge of the defendants. There is no factual foundation in the application regarding due diligence with respect to document, Ext. LC/C and mere reproduction of statutory provision without foundation is not enough to come to the conclusion that in 8 fact there was due diligence on the part of defendants for not producing document, Ext. LC/C earlier. The defendants, in fact, were not diligent and despite knowledge of the document, they have not produced document, Ext. LC/C earlier when the evidence was led by them. The learned District Judge has considered the application of defendants for additional evidence and after due appreciation of material on record, has rightly not allowed the application for additional evidence. Hence, substantial question of law No. 2 is decided against the appellants. Substantial question of law No. 3: 11. The substantial question of law No.3 is regarding refusal of the learned District Judge for appointment of Local Commissioner. It has been submitted by the learned counsel for the appellants that the learned District Judge has erred in rejecting the application for appointment of Local Commissioner on the ground that earlier an attempt was made by the defendants for appointment of Local Commissioner and the same was rejected by the learned trial court, the defendants should have made second attempt before the learned trial court for appointment of Local Commissioner. There is substance in this contention of the learned counsel for the appellants that application for appointment of Local Commissioner has not been properly considered by the learned District Judge. But, this is not the end of the matter. The fact remains the learned District Judge has dismissed the application for appointment of Local Commissioner. The reasons given by the learned District Judge may not be correct, 9 but this does not mean that the appellants are entitled to appointment of Local Commissioner in the facts and circumstances of the present case. 12. The land has been duly identified by the plaintiffs in Para No. 1 of the plaint by ‘phat’ numbers as well as boundaries. Order VII Rule 3 CPC provides that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. The suit land has been identified by boundaries. 13. The learned counsel for the appellants has relied upon Ram Pal versus Nirmla Devi, 2009 (1) S.L.J. (H.P.) 178 on the point that where there is a boundary dispute, then only course open to the trial court is to settle the dispute by appointment of a Local Commissioner. There is no dispute with respect to law laid down in Ram Pal (supra), but in the present case, the suit has been filed on the basis of ‘phat’ number properly identified in the plaint and proved in evidence accordingly. The trial court has decreed the suit and restrained the defendants from interfering in ‘phat’ No. 175/184 measuring 10 biswas. It has been identified in the plaint. In these circumstances, there is no necessity to appoint a Local Commissioner. Hence, substantial question of law No.3 is also decided against the appellants. 14. No other point has been urged. 10 15. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), October 1, 2010, Judge. (pankaj)