IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 261 of 1999. Date of decision : 3.3.2010. ____________________________________________________ Nand Lal …Appellant. Versus Premi Devi …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes. For the petitioners : Mr. Rakesh Jaswal, Advocate. For the Respondent : Mr. Subhash Sharma, Advocate. Kuldip Singh, Judge(Oral) Sarwan Ram father of appellant Nand Lal had filed a suit for permanent prohibitory injunction against respondent his daughter-in-law. The suit was dismissed by learned Senior Sub Judge Bilaspur camp at Ghumarwin on 15.9.1989 on the ground that Sarwan Ram though was held to be the owner of the suit land but he was not found in possession thereof. Sarwan Ram had filed appeal against judgment, decree dated 15.9.1989. In the appeal Sarwan Ram had filed an application under Order 6 Rule 17 read with Section 151CPC for amendment of the plaint seeking relief of possession on the basis of title, which was allowed by learned lower Appellant Court on 26.9.1992. The learned lower Appellate Court vide impugned judgment and decree has dismissed the appeal, which has been assailed in second appeal and has ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. been admitted on following substantial questions of law: 1. Whether the learned first appellate court could again dismiss the amendment i.e. alternative plea of possession on the basis of title when the application under Order 6 Rule 17 had already been allowed vide order dated 26.9.92 and the amended plaint was taken on record. 2. Whether the impugned judgment and decree is not sustainable in law since the first appellate Court has not granted the relief of possession when there is absolutely clear finding regarding the title as has been held by the learned trial Court. 2. I have heard Mr. Rakesh Jaswal, Advocate learned counsel for the appellant and Mr. Subhash Sharma, Advocate learned counsel for respondent. I have also gone through the record. 3. It has been submitted by Mr. Rakesh Jaswal learned counsel for appellant that learned lower Appellate Court has erred in dismissing the application under Order 6 Rule 17 CPC vide impugned judgment inasmuch as the said application was already allowed by the learned lower appellate Court on 26.9.1992. He has submitted that the learned trial Court had found Sarwan Ram to be the owner of the suit land. The suit was dismissed only on the ground that the suit land was not found in possession of Sarwan Ram and it was found in possession of Premi Devi. Once the application for amendment of plaint was allowed for possession of the land on the basis of title, the learned District Judge should have decreed the suit on the basis of title, more particularly when the judgment dated 15.9.1989 passed by the trial Court was accepted by the respondent. She has not filed any appeal against the judgment, decree dated 15.9.1989 nor she has filed cross objections in the lower appellate Court. The learned counsel for the respondent has supported the impugned judgment. 4. The substantial questions of law 1 and 2 are interconnected therefore both are taken up together for consideration. The amendment application was allowed by the learned lower appellate court on 26.9.1992. It appears learned lower appellate Court while deciding the appeal on 11.1.1999 has not noticed the order dated 26.9. 1992 allowing the amendment application. In the presence of order dated 26.9.1992 learned District Judge could not have dismissed the same application again on 11.1.1999 which was allowed on 26.9. 1992. The learned District Judge has thus erred in dismissing the application under Order 6 Rule 17 CPC vide impugned judgment which was allowed earlier on 26.9.1992 by learned lower appellate Court, therefore, to this extent the impugned judgment is not sustainable. 5. The learned trial Court had found the possession of Sarwan Ram in the judgment dated 15.9.1989. The respondent has not challenged the judgment dated 15.9.1989 by way of appeal nor she has filed cross objections in the appeal filed by Sarwan Ram in the lower appellate Court. Thus findings regarding title of the suit land recorded by learned trial Court in favour of Sarwan Ram have attained finality. Once the amendment application was allowed praying possession of the suit land on the basis of title then the learned District Judge had no option but to decree the suit on the basis of facts established on record that Sarwan Ram was the owner of the suit land. Sarwan Ram had died during the pendency of appeal in the lower appellate Court. Nand Lal son of Sarwan Ram was brought on record in the lower appellate Court as legal representative of Sarwan Ram. It has been submitted by learned counsel for respondent that there is some litigation between the parties regarding the suit land. The present case is to be decided on the basis of material on record and the case projected by both sides. The respondent has failed to prove her possession on the suit land and therefore, she has no right to retain the possession of the suit land in view of the title which has been established in favour of Sarwan Ram. Both substantial questions of law are decided against the respondent and in favour of the appellant. The impugned judgment, decree are not sustainable and are liable to be set aside. 6. No other point was urged. 7. In view of above appeal is allowed, the judgment, decree dated 11.1.1999 passed by learned District Judge Bilaspur in Civil Appeal No. 71 of 1989 are set aside. A decree of possession and permanent prohibitory injunction of suit land is passed in favour of appellant and against respondent. No costs. (Kuldip Singh) Judge. March 3,2010. (KC)